Boyd v. McDonald, 27 Vet.App. 63 (August 5, 2014)
SCOPE OF NOA, PRESUMPTION OF REGULARITY, BOARD’S AUTHORITY TO ADJUDICATE MATTERS SEPARATELY
Held: Unless the court expressly states otherwise – and even when the Court has previously viewed matters as being “inextricably intertwined” – the Board has the authority to adjudicate matters separately. This decision also held that in determining the scope of a pro se appellant’s Notice of Appeal, the Court must construe the NOA liberally and consider the circumstances surrounding its filing. In addition, the Court held that once the presumption of regularity with respect to VA’s mailing has been rebutted, the burden shifts to the Secretary to show actual receipt of the document in question.
This case involves multiple decisions and claim streams in a veteran’s decades-long attempt to obtain an earlier effective date for the award of a 30% disability rating for a skin condition.
VA denied the veteran’s initial claim for benefits in 1982. The veteran filed a request to reopen in 1990, and the RO awarded service connection for a skin condition, rated 10% disabling, in 1997. He appealed that decision and the RO issued a Statement of the Case in March 1999. Mr. Boyd filed his Substantive Appeal in February 2000, which the RO rejected as untimely. Instead, the RO treated his appeal as a claim for an increased rating. Thus, this case involves two claim streams arising from (1) the 1990 claim to reopen and (2) the 2000 claim for an increased rating. 27 Vet.App. at 65-66.
Mr. Boyd appealed the RO’s decision that his appeal was not timely, asserting that he had been misinformed by the RO as to the time to file his appeal. He also continued to submit evidence to support the increased-rating claim. The RO awarded a 30% rating, effective May 1999, the date of the private medical records he had submitted. Id. at 66.
In 2002, the Board addressed both claim streams, and determined that (1) the February 2000 Substantive Appeal was not timely and (2) he was not entitled to an effective date earlier than May 1999 for the 30% rating. The Board did not address his contentions regarding being misinformed by the RO as to the time to file his appeal. Id.
In 2007, the CAVC vacated the Board’s 2002 decision with respect to both matters and directed the Board to discuss equitable tolling regarding the timeliness of the Substantive Appeal. Because the Board’s decision on the Substantive Appeal issue could have a significant impact on the earlier-effective-date issue, the Court stated that the two issues were “inextricably intertwined.” Id.
In April 2008, Mr. Boyd provided the RO with a new mailing address. Two weeks later, he provided the RO with a different mailing address. In June 2008, the Board issued a decision holding that the Substantive Appeal was not timely and that equitable tolling was not warranted, but remanding the effective date issue to the RO. The Board mailed the decision to the wrong address. Id. at 67.
In February 2009, the RO received a statement from Mr. Boyd that he disagreed with the Board’s 2008 decision, and addressed both claim streams. The RO did not act on this statement. Id.
In an August 2009 decision, the Board determined that its June 2008 decision was final with respect to the timeliness issue, and continued to deny an earlier effective date for the 30% rating. The Board did not respond to Mr. Boyd’s February 2009 statement regarding error in its June 2008 decision. Id. at 67-68.
Mr. Boyd appealed to the CAVC in February 2010, but the Court dismissed the appeal as untimely. Two years later, Mr. Boyd filed a pro se motion to recall mandate in the Court’s 2010 dismissal order. In his motion, he addressed the Board’s June 2008 and August 2009 decisions. The Secretary informed the Court that Mr. Boyd had filed a timely motion for reconsideration of the August 2009 decision – but that the Board mailed its denial of that motion to the wrong address. Therefore, the Secretary did not oppose Mr. Boyd’s motion to recall mandate. Id. at 68.
On appeal to the Court, Mr. Boyd first argued that the Board’s 2008 decision did not become final until the earlier effective date issue was decided because the Court had previously deemed the matters inextricably intertwined and, therefore, the Board had no authority to adjudicate those matters separately. In the alternative, he argued that he was entitled to notice that the Board was going to adjudicate the matters separately. He next argued that the Board’s 2008 decision did not become final because the decision was mailed to the wrong address and the 120-day appeal period did not begin until he received notice of the 2008 decision. He also challenged the Board’s 2009 decision with respect to the earlier effective date issue because the Board failed to address medical evidence. Id. at 68-69.
The Secretary argued that the Court lacked jurisdiction to review the 2008 decision because Mr. Boyd did not file a timely appeal. The Secretary conceded that the 2008 decision was mailed to the wrong address, but asserted that Mr. Boyd had actual notice of it. The Secretary also argued that the Board is not required to provide notice of its intent to separate issues that the Court previously deemed inextricably intertwined and that the Board has the authority to adjudicate such issues separately. The Secretary asserted that the effective date for the 30% rating cannot be earlier than one year prior to the date of the claim, which was February 2000. Id. at 69.
The Court first determined that through a liberal reading of the pro se NOA, and consideration of the surrounding circumstances, Mr. Boyd was attempting to appeal both the 2008 and 2009 Board decisions. The Court thus found that it had jurisdiction to (1) consider whether the 2008 decision was final, for purposes of review by the Court, and (2) review the 2009 decision. Id. at 69-70.
With respect to the first issue, the Court found that the appeal of the 2008 decision was premature – and was still premature – because the Secretary did not show that Mr. Boyd had actual notice of that decision prior to February 2009, when the RO received his statement. Id. at 71. The Court found that the Board’s mailing of the decision to the wrong address was clear evidence to rebut the presumption of regularity, and that the Secretary had not shown that the decision was ever mailed to the correct address or that Mr. Boyd actually received it prior to his February 2009 statement. Id. at 71-72. The Court reminded the Secretary that once the presumption of regularity has been rebutted – as it had been by showing that the decision was never mailed to the correct address – the burden shifts to the Secretary to show actual receipt. Id. at 72-73. The Court further held that the 120-day appeal period did not begin until February 27, 2009, the date of Mr. Boyd’s statement. Id. at 74.
The Court also held that because VA never responded to Mr. Boyd’s February 2009 statement with respect to the June 2008 decision, that statement abated the finality of the June 2008 decision for purposes of appealing to the Court. Id. The Court added that the February 2009 statement was also a potential motion for reconsideration as to both claim streams. Id. at 75. However, the Court determined that the NOA was still effective as to the issues in the Board’s 2009 decision – since those matters are separately appealable to the Court. Id. at 76.
The Court reviewed the language of its prior remand order, and determined that the “inextricably intertwined” language “did not require the Board to adjudicate the matters together.” Id. at 77. The Court held that the Board did not have to provide notice that it would be adjudicating issues separately, and that the Board’s 2009 decision was properly on appeal, “even though the issues of an initial rating in excess of 10% and an earlier effective date for service connection” were not yet final because finality of those issues in the June 2008 decision was abated. Id. at 77-78.
Regarding the 2009 decision, the Court held that the appellant provided no basis for an earlier effective date for the 30% rating, and thus affirmed the Board’s 2009 decision. Id. at 78. However, the Court made it clear that this affirmance did not prevent the appellant from obtaining an initial rating higher than 10% prior to May 1999 and an effective date earlier than March 1990, based on his claim to reopen and the timeliness of his Substantive Appeal. Id. To this end, the Court modified the Board’s 2009 decision “to remove findings that might preclude the veteran from obtaining relief on the matters at issue in the first claim stream.” Id. at 78-79.