When is New and Material Evidence under 38 C.F.R. § 3.156(b) "received"

What is the Deep Issue in the Case?

New and material evidence received between the issuance of a VA Ratings Decision and a Notice of Disagreement is considered as filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. 3.156(b).

The VA denied the veteran's claim to reopen service connection for epilepsy.

During the one year time period between the denial of that claim and the time to file a notice of disagreement (NOD), the veteran told the VA that he was getting treatment at a VA Medical Center for PTSD. When later included in the file, those VA medical records included evidence that the veteran's PTSD was related to his epilepsy, but the Veteran did not tell the VA that.

The VA did not re-adjudicate the claim based on that information. 4 years later, the veteran sought to reopen service connection for epilepsy. The VA granted reopening, denied service connection and, on appeal, the BVA denied reopening.

When the veteran told the VA that he was getting medical treatment at the VA during the 1 year appeal period, did the VA receive new and material evidence?

What did the CAVC Decide?

  1. Were the records generated by a VA medical facility?
  2. Did VBA (not a typo) adjudicators have "sufficient knowledge" that the records existed.
  3. In accordance with the Federal Circuit's holding in Sullivan, the VBA's constructive receipt of these records is not tied to their relevance to the claim.

** This is not an effective binding precedent until the CAVC issues its mandate. If the Government does not seek reconsideration of the CAVC panel decision, full court review, or appeal the decision to the Federal Circuit Court of Appeals, the mandate will likely issue in late April 2018. ***

Takeaway Points for VSOs and Veterans Disability Lawyers:

1. This is primarily an effective date rule.

While it would be nice if the VA would routinely check CAPRI or other VA medical record systems for new and material evidence before finding that the veteran or survivor did not file a notice of disagreement, the government has made clear that it does not have enough resources to check its own computer databases.

As such, the primary function of this rule will be in 2 scenarios:

  1. Scenario 1: the VA or BVA declines to reopen a case and there is evidence that the VA had constructive receipt of VA medical records in the 1 year appeal period. This case should be argued that relevance of the records themselves is not the focus, and the case should be reopened and adjudicated on the merits of the service connection claim.
  2. Scenario 2: Service connection is granted, and in adjudicating "down stream" issue of the claims effective date, the VA's constructive receipt of its own VA medical records renders the original claim open and pending, supporting an earlier effective date.

If you are an accredited VA attorney representing Veterans and have a question whether this rule applies to your effective date argument, please email me at vetlaw@attigsteel.com or submit a request for support online here.

2. This case is part of a bigger battle in American jurisprudence.

The reasoning in this case is intriguing and raises an eyebrow about the direction of the Court on certain issues; to that end, it is worth following the judges on the panel in cases of regulatory interpretation.

There are 2 reasons that, with or without an appeal, the reasoning in this case is intriguing.

First, the term "new and material" evidence in the context of a claim to reopen will no longer be an issue after the VA's appeals reform goes into place. Reopened claims will be replaced with supplemental claims, and the standard for supplementing will be "new and relevant".

Although the legislation contains interpretive guidance directing courts interpret "new and material" and "new and relevant" in the same way, this will likely not happen in the long run. In my opinion - at least as I understand the law at this time - Congress cannot direct the courts to change how they interpret statutes merely by codifying the legislative bargain.

Second, there is a battle raging in American jurisprudence.

That battle is over the degree of deference to be afforded administrative regulations which interpret a statute.

That battle is being waged in every federal circuit court of appeals across many areas of the law.

For our purposes, in the context of regulations under Chapter 38 of the Code of Federal Regulations, that battle is represented by the "tug-of-war" between "Auer deference" and "Gardner deference".

More on this tug-of-war later, but the former says an agency interpretation of its own regulation is controlling unless the interpretation is plainly erroneous or inconsistent with the regulation; the latter says when there is an ambiguity in a regulation, the approach that benefits veterans controls.

Most times, these 2 particular doctrines of interpretation (using that term very, very loosely), operate in harmony.

In critical ways, however, they clash: the VA's interpretation is not necessarily the "pro-veteran" approach. Other times, as Judge Toth seems to intonate in oral arguments in the Ravin case, it is not clear whether the individual or collective benefit of veterans should control under Gardner. In the tug of war between Auer and Gardner, who wins?

3 judges of the Federal Circuit made plain, in a January 2018 dissent in the Kisor decision, that Auer must give way to Gardner.

Ultimately, however this micro-battle over Auer in the context of 38 CFR is part of a macro-war involving the power of the administrative state, the blurring of the separation of power between the legislature and the executive, and the limitation of the judiciary's check to balance the executive branch.

I don't want to characterize this battle as a resurgence of the doctrine of non-delegation - it very well could be.

It is probably the better course to say only that I think we are witnessing the jurisprudential maturing of how that doctrine operates in harmony, or conflicts with, the concepts of federalism and co-equal branches of government.

The panel of judges in this case - 2 law professors being among them - are assuredly aware of the micro and macro aspects of the battle over Auer deference.

Rather than avoid the battle, the panel appears to probe the perimeter of defenses at the Federal Circuit:

  • They find the word "received" is ambiguous in 38 C.F.R. 3.56(b)
  • They find that Auer deference does not apply when the Secretary's position is not even reasoned.

The reasoning assumes Auer is the governing rule of deference, otherwise it would have resolved the ambiguity with Gardner's "what's-best-for-the-veteran" focus.

If this case is appealed to the Federal Circuit - and I strongly suspect it will - how the Federal Circuit addresses the issues in it will tell the CAVC quite a bit about how to write decisions interpreting regulations which will survive a Federal Circuit reversal.

Of course, there is a strong possibility that I'm simply "seeing dead people" where nobody else does, which has its own implications, depending on which movie you are watching.

2. What happens when a narrowly focused General Counsel meets an engaged Judge.

At one point in the oral arguments of this case, I found myself momentarily feeling sorry for a government attorney at the VA Office of General Counsel.

Before going further, I want to be very clear. If there is an award inside the VA Office of General Counsel for "taking one for the team" then Ms. Gower should be a 2018 nominee.

Government attorneys are in an unenviable position. As a former trial attorney with the Department of Treasury's Office of General Counsel, and in one prominent lawsuit over the employment practices of the EPA Office of General Counsel, I saw first hand how GC's speak with several (often contradictory) voices in distinct fora. I've experience the top-down control over litigation and appeal strategies, and I've seen government GC's work hard to avoid a unified jurisprudential theory on the belief their approach will be mooted in 4 years when a new GC comes to town. Additionally, the VA OGC has a historic tendency to take a restrictively narrow view of the law in his or her legal defense of the VA Secretary.

TheVA OGC Attorney in this case was Lindsay Gower , and she took some took some serious blows from the Court for the GC. It appears from her briefs, argument, and the soft whispers of her superiors that the GC had a tight rein on her arguments in this case.

I'm just a guy sitting in a private law office in Arkansas, but here's my 2 cents: this case was about regulatory interpretation, and the powers-that-be appear did not give their attorney the tools to do her job most effectively.

That's not to say I'm defending how she chose to take those blows, either: this is NOT about good or bad advocacy skills.

The exchange below is a clash over jurisprudential ideologies: one of the hardest jobs you can ask a relatively new line attorney in the VA to do is fight the battle over Auer deference by proxy, with both hands tied.

The exchange, below, was triggered by a question from Judge Allen: he asked for the Secretary's position on the Duty to Assist in a particular phase of a claim.

As noted above, Ms. Gower likely had no authority to state that position, did not know the position, or was instructed to evade answers to the question.

Each is fine, I think; while not having a position on an issue of importance to your legal position is not as unusual as it should be, judges prefer directness, candor, and honesty.

Saying "I don't know", or "We don't have one" are honest answers.

It is down right problematic, in an appeal that involves the reasonableness of the VA's interpretation of a regulation, but honest.

Listen to how one attorney handled the Judge's line of questioning in this ~4 minute excerpt:

Truth be told, I expected an OGC answer that they are re-evaluating their position in light of a statutory change: the Duty to Assist in the appeal period statutorily disappears when the VA's new Appeals Reform is emplaced in 2019.

Under the new appeals reform law Congress passed in August 2017, if you choose to file an appeal of a VA Ratings Decision to the BVA, the Duty to Assist no longer applies.

That's a good enough reason as any to tell a Judge why you don't have a position: the law has changed, and we are still evaluating our legal position on that issue in light of the change.

In light of the Auer battle noted above, that is a much stronger position from which to defend a regulation you already know the Court is going to find ambiguous.

Such an answer might have furthered discussion, and may have actually altered the outcome of the case, as discussion of the new law did at the Federal Circuit Court of Appeals in Ebanks v. Shulkin (link is to a PDF of the Ebanks decision).

Case Details

Link to the CAVC Panel Decision on the CAVC Website

Link to the BVA Decision on CAVC Website

CAVC Judge: Panel Decision (Precedential)

Judge Allen - Opinion Author - (link to bio on CAVC website)

Chief Judge Robert N. Davis (link to bio on CAVC website)

Judge Coral W. Pietsch (link to bio on CAVC website)

OGC Attorney: Lindsay Gower

Veteran Representation at CAVC: Amy F. Odom, National Veterans Legal Services Project (NVLSP)

Board of Veterans Appeals Veterans Law Judge: Jonathan B. Kramer

VA Regional Office: Little Rock, Arkansas VARO

Vets’ Rep at BVA:Military Order of the Purple Heart

Date of Decision: February 8, 2018