holding that the relevant statutes provide only two exceptions to the rule of finality, and that there is nothing in the legislative history of the pertinent statutes indicating that Congress intended to allow additional exceptions to the finality of VA decisions based upon "grave procedural error"
How later courts described this case
- holding that the relevant statutes provide only two exceptions to the rule of finality, and that there is nothing in the legislative history of the pertinent statutes indicating that Congress intended to allow additional exceptions to the finality of VA decisions based upon "grave procedural error"
- concluding that “Congress did not intend to allow exceptions to the rule of finality in addition to [those] that it expressly created” (citing, e.g., Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993))
- 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
- noting that in Tablazon, Hauck v. Brown, 6 Vet.App. 518 (1994), Kuo v. Derwinski, 2 Vet.App. 662 (1992), and Ashley v. Derwinski, 2 Vet.App. 307 (1992), "VA's failure to comply with statutory procedural requirements regarding notification of benefit determinations had the effect of extinguishing the claimant's right to appeal an adverse decision"
Written by the judges who cited it.
The opinion
DYK, Circuit Judge,
with whom LINN, Circuit Judge, joins, concurring.
I fully join the majority’s opinion, but wish to make clear that we are not decid *1349 ing today that a past breach of the duty to assist is without consequence. In particular we are not deciding the effect of a past breach of the duty to assist on a new and material evidence claim.
Unlike a successful clear and unmistakable error (CUE) claim, which is given the effective date of an earlier reversed or revised decision under 38 U.S.C. § 5109A, a successful new and material evidence claim typically is not given retroactive effect. By statute and regulation, a reopened claim generally results in the veteran’s receiving payments only from the date that the application was received. 38 U.S.C. § 5110 (a) (“Unless specifically provided otherwise in this chapter, the effective date of an award based on ... a claim reopened after final adjudication ... shall not be earlier than the date of receipt of application therefor.”); 38 C.F.R. § 3.400 (“[The effective date] will be the date of receipt of the claim or the date entitlement arose, whichever is the later.”).
Where there has been a material breach of the statutory duty to assist at some time in the past, and that breach by the government prevented the veteran from discovering the new and material evidence at an earlier date, a question arises as to whether retroactive relief is available in a new and material evidence proceeding. An argument for retroactivity might have particular force where the violation of the duty to assist was unknown to the veteran at the time of the original application, for example, where the Veterans Administration had pertinent undisclosed information in its files and the veteran was unaware that a proper search had not been conducted. Indeed, the government in this case appears to concede that in such circumstances retroactive relief would be available in a new and material evidence proceeding by virtue of 38 C.F.R. § 3.400 (q)(2). *
I express no opinion on these questions, and write merely to emphasize that we are not deciding them today.
The following colloquy between the court and government’s counsel, occurred during oral argument:
The Court: Let me ask you a very clear hypothetical. Suppose that I was a veteran, and some years after my service I filed a claim saying I'm disabled and have been ever since an incident that occurred during my time in service. And the regional office or the veteran's board ... adjudicates my claim in the total absence of any file of my military service and just turns down the claim saying "you just haven’t proven your claim." ... [I]t was my view that my service file clearly showed that I was injured [and] disabled way back then. Can it really be that a decision in which no militaiy medical records were obtained can be immune from revision?
H« * * * * *
Counsel: [U]nder your hypothetical, if it was adjudicated under the new and material evidence exception the individual would get the benefits going back in time, not just limited to the date of reopening ... I respectfully refer the court to 38 C.F.R. 3.400(q) in that where a new and material evidence claim to reopen is granted, and is decided in the claimant’s favor, if the basis of the decision granting benefits was based on service department records which were for some reason not before the original board, the effectiveness date goes back in time as it would in CUE and not as it was normally occurring in the typical claim to reopen.