Client Win: CAVC No. 20-2705, Clifton v. Wilkie (BVA decision overlooked earlier effective date argument)
This case involves a BVA decision for a US Army veteran (1979 - 1985) who sought an earlier effective date for the grant of service connection for his hypertensive kidney disease.
The appeal was resolved through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (BVA decision overlooked earlier effective date argument).
Pursuant to 38 U.S.C. § 7104(d)(1), a BVA decision must include a written statement of the BVA's findings of fact and conclusions of law. The BVA judge must also provide their reasons or bases for those findings and conclusions. Without this statement of reasons and bases, the CAVC cannot review the BVA's decision on factual findings for clear error.
In a legacy claim, the veteran can submit new and material evidence before the end of the one-year period to file a Notice of Disagreement. If the veterans does this, the VA and the BVA must consider the evidence as if it were filed in connection with the underlying claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). THIS IS NOT TRUE OF AMA APPEALS: this rule only applies in Legacy appeals.
This rule is so powerful in Legacy VA claims that if a regional office renders a decision but receives new and material evidence within the 1 year appeal period, the VA rating decision does not become final until the regional office acts on the new evidence. Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014).
RESOLUTION AT THE CAVC.
In this case, the BVA found that the veteran did not appeal his May 2010 and June 2012 rating decisions that had denied his claim for a kidney condition. The BVA judge found that there was no evidence in the record of any formal claim or statements that amounted to an informal claim prior to November 2014.
However, the Record Before the Agency included a January 22, 2013, submission from the veteran. That submission included a letter from his VA physician dated December 15, 2011, which noted that he had a long-standing history of hypertension which caused chronic kidney insufficiency and that the progressive decline of his kidney function was accelerated by anti-inflammatory medication was needing dialysis.
The parties agreed that remand was warranted for the BVA to provide an adequate statement of reasons or bases to address whether the December 15, 2011 letter from the veteran’s physician was new and material evidence received prior to the expiration of the appeal period. If so, then the veteran might be entitled to an earlier effective date from the BVA.
If you have been denied an earlier effective date in a VA rating decision or a BVA decision, and would like to discuss the possibility of appealing to the BVA or the CAVC, click here to have Attig | Curran | Steel take a look at your case.
Case Details
OGC Attorney: Lilian Leifert (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: Donnie R. Hachey (link to House Veterans Affairs Committee hearing regarding allegations that this Judge intentionally delayed BVA decisions while serving as Chief Counsel for Operations)
Attorney for the BVA: A. Zheng
Vets’ Rep at BVA: Disabled American Veterans (DAV)
Date of BVA Decision: January 2, 2020
Date of CAVC Joint Motion to Remand: November 23, 2020
Link to CAVC Memorandum Decision
