USFC {A4ED4F69-5 B77-4D9B-BC53-A4D3C9C3 B3C2} {95307}{ :135213}{042308} APPELLANT'S BRIEF

Transcription

1 lll ll lull ll USFC {A4ED4F69-5 B77-4D9B-BC53-A4D3C9C3 B3C2} {95307}{ :135213}{042308} APPELLANT'S BREF

2 April 23, 2008 UNTED STATES COURT OF APPEALS FOR THE FEDERAL CRCUT ALLSON E. RANCHER, V, JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, W_ST/CR8 Claimant-Appellant, Respondent-Appellee. APPEAL FROM THE UNTED STATES COURT OF APPEALS FOR VETERANS CLAMS N JUDGE ALAN G. LANCE, SR. BREF OF APPELLANT ALLSON E. RANCHER FLED $ court 0 FAPPEALSFOR U. :[HE FEDERALCRCUT APR _ 3?.o0_ jmtho_bp, L'_ CLERK JOHN F. CAMERON P.O. Box Montgomery, AL TELEPHONE: (334) Attorney for Appellant, Allison E. Rancher

3 April23, UNTED STATES COURT OF APPEALS FOR THE FEDERAL CRCUT ALLSON E. RANCHER, V, JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, Claimant-Appellant, Respondent-Appellee. APPEAL FROM THE UNTED STATES COURT OF APPEALS FOR VETERANS CLAMS N JUDGE ALAN G. LANCE, SR. BREF OF APPELLANT ALLSON E. RANCHER JOHN F. CAMERON P.O. Box Montgomery, AL TELEPHONE: (334) Attorney for Appellant, Allison E. Rancher

4 CERTFCATE OF NTEREST Pursuant to Federal Circuit Rules 28(a)(1) and 47.4, counsel for Allison E. Rancher certifies the following: 1. The full name of every party or amicus represented by me is: Allison E. Rancher 2. The name of the real party in interest, if different than the above, is: None 3. The parent companies, subsidiaries, and affiliates that have issued shares to the public, of the party or amicus curiae represented by me are: None 4. The name of all law firms and the partners or associates that appeared for the party now represented by me expected to appear in this court are: John F. Cameron, P.O. Box Esq. Montgomery, AL (334)

5 TABLE OF CONTENTS Page(s) CERTFCATE OF NTEREST... i TABLE OF CONTENTS... ii TABLE OF AUTHORTES... iv 1 i STATEMENT OF RELATED CASES... vii STATEMENT OF SUBJECT MATTER AND APPELLATE REVEW... viii STATEMENT OF THE SSUES... 1 STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS... 4 SUMMARY OF THE ARGUMENT... 7 ARGUMENT STANDARD OF REVEW THE VETERANS COURT MPROPERLY NTERPRETED THE SECRETARY'S REGULATONS AND THEREFORE CONCLUDED THAT HER PENDNG, UNADJUDCATED ORGNAL JANUARY 31, 1985 CLAM WAS FNALLY DECDED BY FOUR 1988 DECSONS A. The Veterans Court improperly affirmed the Board's Decision on a new basis not considered by the Board and engaged in improper initial fact-finding on this new basis B. The Veterans Court misinterpreted the Secretary's Regulation on Notices of Disagreements and therefore improperly concluded that Ms. Rancher had not filed a Notice of Disagreement... 18

6 C. The Veterans Court misinterpreted the Secretary's Regulations on Original Claims and Claims for ncreased Ratings and therefore improperly concluded that the VA's 1988 Rating decisions to new claims for increased ratings denied Ms. Rancher's original claim THE VETERANS COURT MSNTERPRETED THE VA'S DUTY TO STATE REASONS AND BASES FOR TS CONCLUSON THAT THE APPELLANT HAD WTHDRAWN HER TDU CLAM AND MSNTERPRETED THE VA'S DUTY TO LBERALLY CONSTRUE ANY DOCUMENT THAT PURPORTS TO WTHDRAW A CLAM CONCLUSON i i iii

7 TABLE OF AUTHORTES CASE AUTHORTY Page(s) Bailey v. Prineipi, 351 F.3d 1381, 1384 (Fed. Cir. 2003), citingjaquay v. Prineipi, 304 F.3d 1276, 1289 (Fed. Cir. 2002) (en bane) Beyrle v. Brown, 9 Vet. App. 24, 27 (1996) EFv. Derwinski, 1 Vet. App. 324, 326 (1991) Fenderson v. West, 12 Vet. App. 119, (1999) Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002), cert. denied, 537 U.S. 823, 123 S. Ct. 110, 154 L. Ed. 2d 33, 2002 U.S. LEXS 6033 (U.S. Oct. 7, 2002)... 9 Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990) (quoting United States v. U. S. Gypsom Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948) Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, , 84 L. Ed. 2d 518, 105 S. Ct (1985) Hamilton v. Brown, 4 Vet. App. 528, 544 (1993) Cf Hanson.v. Brown, 9 Vet. App. 29, 32 (1996) Hensley v. West, 212 F.3d 1255, (Fed. Cir. 2000) i Hodge v. West, 155 F.3d 1356, (Fed. Cir. 1998) senbart v. Brown, 7 Vet. App. 537, 541 (1995) Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007)... 18, 19, 21- Kalman v. Prineipi, 18 Vet. App. 522, 524 (2004) Mayfield v. Nieholson, 444 F.3d 1328, (Fed.Cir. 2006) citing Sec. iv

8 & Exeh. Comm'n v. Chenery Corp., 318 U.S. 80, 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) Moody v. Prineipi, 360 F.3d 1306, 1310 (Fed. Cir. 2004)... 30, 34 Muehlv. West, 13 Vet. App. 159, (1999)... 13, 15, 18 Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) See. & Exch. Comm 'n v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 91 L. Ed (1947) Suttman v. Brown, 5 Vet. App. 127, 136 (1993) Verdon v. Brown, 8 Vet. App. 529, 533 (1996)... 32, 35 Williams v. Peake, F.3d., 2008 U.S. App. LEXS 7052 (Fed. Cir. April 3, 2008) STATUTES Page(s) 38 U.S.C. 5110(b)(1)... 5, U.S.C. 7104(d) U.S.C. 7292(d)(1) REGULATONS Page(s) 38 C.F.R (b) (2006)... 13, C.F.R (a), (b) , C.F.R

9 i 38 C.F.R (b), (d) C.F.R (c), (d) C.F.R (f) C.F.R (b)(ii)(B)(2)... 5, C.F.R (1988) C.F.R (2000)... 29, 31 i vi

10 STATEMENT OF RELATED CASES Counsel for the Appellant, Allison E. Rancher, furnishes the following information in compliance with Fed. Cir. R. 47.5: The title and docket number of any "related case," as defined by Fed. Cir. R. 47.5, pending in this or any other court are: None vii

11 STATEMENT OF SUBJECT MATTER AND APPELLATE REVEW On May 22, 2001, the Board of Veterans' Appeals ("Board" or "BVA") denied Ms. Rancher's claim to establish an effective date earlier than December 11, 1996 for her 100% rating for her service-connected schizophrenia. Ms. Rancher believes that she is entitled to an earlier effective date of February 2, 1984, which is the day after her discharge from active duty, for her granted 100% rating for her service-connected schizophrenia. On October 24, 2007, the U.S. Court of Appeals for Veterans Appeals ("Veterans Court") issued a Memorandum Decision which was partially favorable to Ms. Rancher. The Court reversed the Board's decision finding that the Board did not state adequate reasons or bases for its conclusion that the VA Regional Office's (VARO) March 1993 decision was final. The Court denied Ms. Rancher's claim for an earlier effective date based on her original January 1985 claim because it held that this claim was finally denied in The Court also concluded that the Board's finding that Ms. Rancher withdrew her TDU claim was not clearly erroneous. The Veterans Court entered judgment on November 16, On January 11, 2008, Ms. Rancher appealed the Veterans Court's decision to this Court. Her appeal was timely pursuant to 38 U.S.C. 7292(a). viii

12 , i.. STATEMENT OF THE SSUES Whether the Veterans Court improperly interpreted the Secretary's Regulations and therefore concluded that her pending, unadjudicated original January 31, 1985 claim was finally decided by four 1988 decisions. Whether the Veterans Court misinterpreted the VA's duty to state reasons or bases for its conclusion that the Appellant had withdrawn her TDU claim and misinterpreted the VA's duty to liberally construe any document that purports to withdraw a claim.

13 STATEMENT OF THE CASE, On May 22, 2001, the Board of Veterans' Appeals ("Board" or "BVA") issued its decision granting Ms. Rancher an effective date of December 11, 1996 for the award of a 100% schedular rating for her serviceconnected schizophrenia, but denying her an effective date prior to December 1996 for this rating. (A ). On June 6, 2001, within 120 days of her receipt, Ms. Rancher filed her motion for reconsideration with the Board, which was received by the Board i on June 6, On August 1, 2001, the Board issued a decision denying Ms. Rancher's motion for reconsideration, but did not mail it to the veteran until May 15, On July 24, 2002, Ms. Rancher filed her Notice of Appeal with the Veterans Court in order to obtain judicial review of the Board's May 2001 decision. (A. 18). On September 13, 2006, the Veterans Court issued its decision which affirmed the Board's May 22, 2001 decision. (A ). n her October 4, 2006 motion for reconsideration/panel review, Ms. Rancher again raised issues that the Court's decision had improperly interpreted the controlling law (A ). 2

14 On October 24, 2007, the Veterans Court issued a Memorandum Decision partially granting and partially denying the Appellant's issues in her appeal (A. 1-15). On January 11, 2008, Ms. Rancher filed her Notice of Appeal with the Veterans Court to appeal its decision to this Court (A. 141).

15 i i STATEMENT OF THE FACTS The veteran, Allison E. Rancher, (hereinafter, "Appellant" or "veteran") served honorably in the U.S. Army from September 1980 until February 1, 1984 (A. 30). n 1983 Ms. Rancher was diagnosed and treated for her schizophrenia while in service (A. 2). On January 29, 1985, she was admitted to the Tuscaloosa, Alabama VA Medical Center (VAMC) where she was hospitalized and treated for her schizophrenia until her March 20, 1985 discharge (A ). On her discharge, her physician stated, "She is unable to engage in stressful employment at this time." (A. 25). After her discharge from service, she attempted to work at the Anniston Army Depot, but this job was terminated while she was hospitalized in the Tuscaloosa VAMC (A. 33). On January 31, 1985, Ms. Rancher filed her original claim to establish service connection for her schizophrenia (A , 30). n August 1985, the VA granted her original claim and found her schizophrenia to be serviceconnected (A ). The VARO granted a temporary 100% rating from January 29, 1985 until March 31, 1985, based on her hospitalization for paranoid schizophrenia at the Tuscaloosa VAMC from January 29,

16 until March 20, 1985 (A ). This August 1985 Rating decision also granted a 30% rating effective April 1, 1985 (A ). The August 1985 rating decision did not assign the correct effective date of February 2, See 38 U.S.C. 5110(b)(1); 38 C.F.R (b)(ii)(B)(2). During the one-year appeal, as discussed below, she submitted new and material evidence which tolled her appeal period for her original claim. n a February 24, 1986 VA Neuropsychiatric Examination report, Dr. G. G. Ochoa stated that her "degree of incapacity" was "[m]oderately severe, unable to pursue career in regular Army and in civilian job in Army Depot." (A. 33). n July 1986, she submitted vocational evidence which stated that she was "too psychotic" to work (A. 37, 38) On September 29, 1988, she was again admitted to the Tuscaloosa, VAMC where she was hospitalized and treated for her schizophrenia until her November 2, 1988 discharge (A ). On her discharge, her physician stated, "The patient probably is unable to compete for gainful employment - however, she may benefit from continued efforts at vocational rehabilitation." (A. 58). n November 1988, the Social Security Administration (SSA) concluded Ms. Rancher's schizophrenia had been totally disabling since January 5, 1985 and granted Social Security Disability (SSD) benefits. n fact, the SSA concluded that her schizophrenia met its Listing and she

17 was presumed to be disabled (A , 78, 87, 88). n 1994, the SSA again found she continued to meet Listing for her schizophrenia (A ). After extensive administrative proceedings, in August 1999, the Secretary granted a 100% schedular rating, effective May 10, 1999, for her schizophrenia (A ). When Ms. Rancher's claim for an earlier effective date for her granted 100% schedular rating was appealed to the Board, the Board in the May 2001 decision on appeal determined that she was entitled to an effective date of December 11, 1996 for the 100% schedular rating, but not earlier than December The Board also concluded that she had withdrawn her TDU claim (A ).

18 SUMMARY OF THE ARGUMENT This appeal involves the Veterans Court's October 2007 decision which affirmed the Board's May 2001 decision on a basis which was different than that relied on by the Board. The Board had concluded that Ms. Rancher was not entitled to an effective date earlier than December 11, 1996, primarily because it concluded that the VA's March 1993 rating decision was final and because her original January 1985 claim was "previously allowed" and final. The Veterans Court concluded that the Board had failed to state adequate reasons or bases for its conclusion that the March 1993 decision was final The Court also acknowledged that the appeal period to her original claim was tolled by the submission of new and material evidence within the appeal period. Nonetheless, the Veterans Court reviewed the record extensively and concluded that Ms. Rancher's original claim had been finally denied by one of four 1988 decisions which neither the Board nor the Secretary had raised or addressed. (A. 7-9, 104). The Veterans Court misinterpreted the VA regulation on filing a Notice of Disagreement (NOD) and the law on filing an NOD during the tolled appealed period. As a result, the Court incorrectly concluded that Ms. Rancher had not filed an NOD (A. 9).

19 The Veterans Court misinterpreted the VA's regulations on original claims and claims for increased ratings. As a result, the Court improperly concluded that the VA's 1988 rating decisions to new claims for increased ratings had denied Ms. Rancher's original January 1985 claim (A. 9). The Veterans Court misinterpreted the VA's duty to state adequate reasons or bases for the Board's conclusion that Ms. Rancher had withdrawn her TDU claim. The Court also misinterpreted the VA's duty to liberally construe any document that purports to withdraw a claim. As a result, the Court affirmed the Board's conclusory finding that Ms. Rancher had withdrawn her TDU claim (A ).

20 ARGUMENT. STANDARD OF REVEW This Court has jurisdiction under 38 U.S.C. 7292(a) over: (1) issues of interpretation if the Veterans Court elaborated on the meaning of a statute or regulation and the decision depended on that interpretation; (2) issues of validity or interpretation raised before the Veterans Court but not explicitly decided, if the decision would have been altered by adopting the position that was urged; and (3) other "relevant" questions of law. Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002), cert. denied, 537 U.S. 823, 123 S. Ct. 110, 154 L. Ed. 2d 33, 2002 U.S. LEXS 6033 (U.S. Oct. 7, 2002). The Appellant respectfully submits that this court has jurisdiction over the issue of the correct interpretation of 38 C.F.R (b) because this issue was raised before the Veterans Court, and explicitly decided, and the court's decision would have been altered by adopting the position that was urged by the Appellant. The Appellant respectfully submits that this court has jurisdiction over the issue of the interpretation of 38 C.F.R , 3.160(b), (c), (d), (f), 9

21 (1988) and the correct interpretation of the duty to liberally construe all pro se pleadings because these issues were raised before the Veterans Court and that court's decision depended on its interpretation of the regulations. Further, this court has jurisdiction to determine whether the legal requirements of these regulations have been correctly interpreted in a particular context where the relevant facts are not in dispute, that is, whether there was an error of law. See Bailey v. Prineipi, 351 F.3d 1381, 1384 (Fed. Cir. 2003), citingjaquay v. Principi, 304 F.3d 1276, 1289 (Fed. Cir. 2002) (en bane). This court may only set aside interpretations of regulations relied upon in the decision of the Veterans Court that it finds be: "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law." 38 U.S.C. 7292(d)(1). 10

22 i i i i. THE VETERANS COURT MPROPERLY NTERPRETED THE SECRETARY'S REGULATONS AND THEREFORE CONCLUDED THAT HER PENDNG, UNADJUDCATED ORGNAL JANUARY 31, 1985 CLAM WAS FNALLY DECDED BY FOUR 1988 DECSONS SSUED N RESPONSE TO NEW CLAMS FOR NCREASED RATNGS. The Board's May 2001 decision granted an earlier effective date of December 11, 1996 for the 100% schedular rating for Ms. Rancher's service-connected schizophrenia (A. 102, ). n February 1999, the Board had remanded Ms. Rancher's TDU claim to the VARO for further adjudication (A. 79). n August 1999, the VARO granted a 100% schedular rating for her schizophrenia effective May 10, 1999 (A ). n October 1999, Ms. Rancher filed a VA Form 9 on which she disagreed with the effective date, arguing that she "ha[d] been totally disabled since [she] filed [her] [TDU] claim in July 1995." (A. 86). On June 22, 2000, she filed a letter in which she stated the same (A. 89). Ms. Rancher appealed and argued that she was entitled to an earlier effective date of February n November 2000, Ms. Rancher's lay representative stated "she has been totally disabled since she was discharged from the military service on February 1, 1984." (A. 92). 11

23 The Appellant had argued before the Veterans Court that the effective date granted by the Board for her 100% disability rating for her serviceconnected schizophrenia should have been February 2, 1984, the day after her discharge from active duty, because her original January 1985 claim for service connection has never become a "finally adjudicated claim." (A ). Ms. Rancher was discharged from active duty on February 1, 1984 (A. 30). She filed her original claim on January 31, 1985, within 1 year of her discharge from service. n August 1985, the VA granted her original claim and found her schizophrenia to be service-connected (A ). The VARO granted a temporary 100% rating from January 29, 1985 until March 31, 1985, based on her hospitalization for paranoid schizophrenia at the Tuscaloosa, Alabama VA Medical Center (VAMC) from January 29, 1985 until March 20, 1985 (A ). This Rating decision also granted a 30% disabling rating effective April 1, 1985 (A ). The August 1985 rating decision did not assign the correct effective date of February 2, See 38 U.S.C. 5110(b)(1); 38 C.F.R (b)(ii)(B)(2). Ms. Rancher's schizophrenia was and has been totally disabling since her February 1, 1984 discharge from active duty. The Veterans Court recognized Ms. Rancher's argument that none of the RO's decisions on her original claim are final, because she either submitted new and material 12

24 evidence, see 38 C.F.R (b) (2006); see also Muehl v. West, 13 Vet. App. 159, (1999), or filed an NOD within the one-year appeal period of those decisions (A. 8). The Veterans Court agreed that "[i]n Muehl v. West, th[at] Court held that the RO's receipt of 3.156(b) compliant evidence abates the finality of a prior decision on a claim and tolls the time for filing an appeal until a new decision has been issued. 13 Vet.App. at " (A. 9). No The Veterans Court improperly affirmed the Board's decision on a new basis not considered by the Board and engaged in improper initial fact-finding on this new basis. i i Before the Veterans Court, the Appellant had argued that "[t]he Board erred in not addressing the issue of whether the February 1, 1985 initial claim was open." (A ). The Veterans Court stated "[t]he appellant, citing 3.156(b) and Muehl, supra, argues that the Board erred by finding that her initial claim has already been subject to a final decision, namely, the RO's July 1985 decision. According to the appellant, the RO received new and material evidence-her July 1986 vocational rehabilitation report-within 1 year of that decision; therefore, the July 1985 RO decision never became final." (A. 9). 13

25 , The Veterans Court agreed with the Appellant and recognized "for purposes of this appeal, that the RO's July 1985 rating decision was rendered non-final upon receipt of the appellant's July 1986 vocational rehabilitation report." (A. 9). nstead of reversing the Board's decision and remanding the matter to the Board for the Board to address this issue, the Court reviewed the record in detail and concluded that the Appellant's original claim was finally denied by one of four VA decisions in April, September, October, and December These four decisions were not addressed by the Board. The Court stated, "As previously noted, the RO's receipt of 3.156(b) compliant evidence only tolls the time for filing an appeal until a new decision has been issued. The record indicates that the RO issued new rating decisions on the appellant's initial claim in April, September, October, and December 1988." (emphasis supplied) (A. 9). The Court reviewed the evidence in the record meticulously and found inaccurately: The appellant did not file an NOD within 1 year of any of those decisions... Moreover, the appellant did not submit any evidence within 1 year of the RO's December 1988 decision, the final appealable decision in that series and the only one that could be subject to tolling under 3.156(b). n short, the appellant's initial claim was subject to an administrative decision that became final for purposes of direct appeal no later than December (emphasis supplied). 14

26 (A. 9). Prior to the Veterans Court's decision, the Secretary had argued that the VA had issued "two final agency decisions [ ] in October 1991 and March 1993," which rendered the Appellant's original claim a finally i adjudicated claim (A. 121, 63-65, 66-67). The Secretary stated, "[a]ssuming arguendo that the issue of the severity of Appellant's serviceconnected schizophrenia remained open following the July 1985 rating decision, that issue became final following the unappealed October 1991 rating decision. n addition, following issuance of the unappealed March 1993 rating decision that raised Appellant's disability rating for serviceconnected schizophrenia to 50-percent, the issue again became final... " (d.). The Secretary did not argue that any of these four 1988 decisions adjudicated Ms. Rancher's original claim. The Secretary implicitly waived any argument that the four 1988 VA decisions, which were referred to by the Court, finally adjudicated the Appellant's original claim. The Secretary has expertise in analyzing VA claims. n its May 2001 decision, the Board had concluded that the VARO's March 1993 Rating decision was final because the Appellant "did not initiate an appeal within one year." (A. 102, 104). The Veterans Court agreed with the Appellant and concluded that "[t]he Board did not provide adequate reasons or bases in support of its finding that the RO's March 1993 decision 15

27 was fmal. R. at 5, [A. 104, 66-67] The evidence of record shows that the RO received some of the appellant's SSA records in July 1993, approximately four months after the March 1993 rating decision. R. at [A ]" (A. 10). After reviewing the record in detail, the Veterans Court agreed that the original 1985 VA rating decision was tolled by the submission of new and material evidence within the one-year appeal period. Nonetheless, instead of reversing the Board's decision and remanding the claim to the Board for a new decision, the Court concluded that Ms. Rancher's original January 1985 claim was finally denied by one of the four 1988 VA decisions, which the Board had not considered. As discussed below, the Court's findings were based on its misinterpretations of law that Ms. Rancher's original claim was the same claim as a claim for an increased i i rating and that herpro se pleadings did not meet the legal requirements of an NOD. The Veterans Court's decision also violates the long-standing principle of administrative law that a court reviewing an agency decision generally may not sustain the agency's ruling on a ground different from that invoked by the agency. See MayfieM v. Nicholson, 444 F.3d 1328, (Fed.Cir. 2006) citing Sec. & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) ("The grounds upon which an administrative 16

28 order must be judged are those upon which the record discloses that its action was based.") and See. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 91 L. Ed (1947) ("A reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. f those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis."). The Board's decision was based on an incorrect understanding of the law, specifically that the new and material evidence submitted within the one-year appeal periods after the July 1985 and March 1993 decisions did not toll those decisions pursuant to 38 C.F.R (b) (2001) and Muehl v. West, supra, and the result under the correct understanding of the law may not be a foreordained conclusion. As such, the Veterans Court should have remanded the case to the Board instead of engaging in initial fact-finding. See Mayfield v. Nicholson, supra," see also Hensley v. West, 212 F.3d 1255, (Fed.Cir. 2000). 17

29 Bo The Veterans Court misinterpreted the Secretary's Regulation on Notices of Disagreements and therefore improperly concluded that Ms. Rancher had not filed a Notice of Disagreement. The Veterans Court's finding that Ms. Rancher's original claim was i finally decided by one of the four 1988 VA decision was based on the Court's erroneous interpretations of law. The "April 1988" rating decision (A. 9) was not an April 1988 decision; it was the April 15, 1986 cover letter for the April 10, 1986 rating decision (A. 34, 35). This April 1986 rating decision (and the appeal period) was also tolled by the submission of new and material evidence in May and July See 38 C.F.R (b) (2001); Muehl v. West, supra; Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007) ("we hold that a claim becomes final and subject to a motion to reopen only after the period for appeal has run. Any interim submissions before finality must be considered by the VA as part of the original claim."). On July 17, 1986, the VA's Counseling psychologist and Vocational Specialist filed a report stating that Ms. Rancher "is much too psychotic for this program or state rehab to benefit her. Should be declared infeasible if she reappl[ies]." (A. 37). On the same date, the VA also stated "this veteran is too psychotic to be able to train or maintain employment. f she reapplies she should be referred to the 18

30 VA panel." (emphasis supplied) (A. 38). On May 9, 1986, the VA discontinued vocational rehabilitation for her (A. 36). This new and material evidence abated the finality of the April 1986 decision on her original claim and tolled the time for filing an appeal until a new decision See Jennings v. Mansfield, supra. On April 18, and 19, 1988, Ms. Rancher had been issued. filed her NODs to the April 1986 VA rating decision (A. 39, 40-49). She stated that she believed she was entitled to a "higher percentage of at least 80% and higher" for her disability. The Veterans Court's conclusion that she did not file an NOD to this April 1986 rating decision was based on its misinterpretation of 38 C.F.R (1988). Whether a document is an NOD is a question of law for the Court to determine de novo. Beyrle v. Brown, 9 Vet. App. 24, 27 (1996). 38 C.F.R (1988) provides as follows: A written communication from a claimant or the representative expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction (the Veterans Administration regional office, medical center or clinic which notified the claimant of the action taken) will constitute a notice of disagreement. The notice of disagreement should be in terms which can be reasonably construed as a desire for review of that determination. t need not be expressed in any special wording. (38 U.S.C. 4005). n its fmding, the Veterans Court did not expressly state why these two documents were not NODs (A. 9). The Court statement that Ms. Rancher 19

31 "did not file an NOD within 1 year of any of those decisions" (ld.) was based on its misinterpretation of law that the NOD was required to be filed within one year after the VA decision. Of course, given the Veterans Court's conclusion that the new and material evidence submitted during the appeal period "toll[ed] the time for filing an appeal until a new decision has been issued" (d.), Ms. Rancher's appeal period for filing her NOD was tolled until the next VA decision on September 7, 1988 (A ). She timely filed her NODs in April The VA has not provided her with a Statement of the Case to pursue her appeal. C. The Veterans Court misinterpreted the Secretary's Regulations on Original Claims and Claims for ncreased Ratings and therefore improperly concluded that the VA's 1988 Rating decisions to new claims for increased ratings denied Ms. Rancher's original claim. The Veterans Court's findings that the September, October, and December 1988 VA decisions denied her original claim were based on its implicit misinterpretations of law and resulting incorrect conclusion that Ms. Rancher's original claim was the same claim as a new claim for an increased rating. The Veterans Court stated, "the appellant's initial claim was subject 20

32 i to an administrative decision that became final for purposes of direct appeal no later than December 1989." (A. 3). The Appellant concedes that a subsequent final adjudication of a claim which is identical to a pending claim that had not been finally adjudicated terminates the pending status of the earlier claim. Williams v. Peake, F.3d, 2008 U.S. App. LEXS 7052 (Fed.Cir. April 3, 2008). 4 n this appeal, the 1988 VA decisions were made on new claims for increased ratings and not on her pending original claim. At the time of these i 1988 decision, Ms. Rancher's original claim was still pending and unadjudicated. Since Ms. Rancher's original claim was pending and unadjudicated in 1988, "any interim submissions before finality must be considered by the VA as part of [her] original claim." Jennings v. Mansfield, supra, at The Veterans Court has held that original claims and claims for increased ratings are different claims. See e.g., Fenderson v. West, 12 Vet. App. 119, (1999); Suttman v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for increase is a new claim "based upon facts different from the prior final claim"). n a claim for a higher initial rating on an original claim, the evidence for the entire period of time is required. Fenderson v. West, supra, at 126. On the other hand, on a new claim for an increased rating, only the current medical evidence is relevant, ld. 21

33 follows: The Secretary's regulation on claims at 38 C.F.R provides as Status of claims. The following definitions are applicable to claims for pension, compensation, and dependency and indemnity compensation. (a) nformal claim. See (b) Original claim. An initial formal application on a form prescribed by the Secretary. (See 3.151, 3.152). (c) Pending claim. An application, formal or informal, which has not been finally adjudicated. (d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of l year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See and of this chapter.) (e) Reopened claim. Any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans Appeals which was not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration as provided in (b)(1) of this chapter. (f) Claim for increase. Any application for an increase in rate of a benefit being paid under a current award, or for resumption of payments previously discontinued. (emphasis supplied). 22

34 On January 31, 1985, Ms. Rancher filed her "original claim" on Form (A. 26, 75). The VA's July 24, 1985 decision to Ms. Rancher's original claim stated it was based on her "original claim." (A. 30). t also stated that "a future examination [was] scheduled for 1986 to determine residual disability at that point." The September 1988 decision stated at the top of the decision "Original Disability Rating? No". The decision stated that it was based on a "Claim for increase." t referred to a last examination of 7/19/88. (A. 51). The decision concluded that "Current examination findings do not show an increase in severity of the veteran's schizophrenia." (emphasis supplied) (A. 52). The July 19, 1988 VA examination on which this rating decision was based stated that it was "a routine future Compensation and Pension examination." (A. 50). This rating decision does not appear to have been mailed to the Appellant. Assuming arguendo that it were mailed to the Appellant, the examination and rating decision addressed only her current examination findings. This decision does not address the issues of a higher initial rating or earlier effective date in her pending original claim. The October 1988 decision (dated November 3, 1988) states at the top of the decision "Original Disability Rating? No" (A. 54). This decision is based only on the Appellant's entitlement to temporary total benefits under paragraph 29. The decision states the "J[urisdiction] [is] VA Form 10-23

35 7132," which refers to the November 3, 1988 VA Form which documented her hospitalization at the Tuscaloosa, Alabama VA Medical Center from "9/29/88 [through her] release [on] " (A. 55, 56-60). This decision does not address the issues of a higher initial rating or earlier effective date in her pending original claim. The December 1988 decision states at the top of the decision "Original Disability Rating? No" (A. 61). This decision is based only on the Appellant's entitlement to temporary total benefits under paragraph 29 and the appropriate rating following the November 3, 1988 discharge from the VA Medical Center. The decision states the "J[urisdiction] [is] Hospital report." The decision refers to Ms. Rancher's hospitalization at the Tuscaloosa, Alabama VA Medical Center from " [through her] [release on] " (A ). This rating decision is based solely on these hospital records. This rating decision considered this a claim for an increased rating, presumably due to 38 C.F.R (a), (b). 38 C.F.R (a), (b) provide in relevant part as follows: Report of examination or hospitalization as claim for increase or to reopen. (a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an 24

36 existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report. (Authority: 38 U.S.C. 5110(a)) (b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the serviceconnected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. n addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt 9f retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling. (1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-va hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized 25

37 subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. (emphasis supplied). This regulation implying a new claim for an increased rating does not apply until the veteran's formal original claim for compensation has been "allowed." Ms. Rancher's original claim had not been finally adjudicated at the time of her 1988 hospitalization. See 38 C.F.R (c), (d). The December 1988 rating decision granted Ms. Rancher "[e]ntitlement to Paragraph 29[ ] benefits [ ] for period of hospitalization." The only other issue addressed in this rating decision was the grant that "[the] [p]re[-]hospital rate is restored following discharge." (emphasis supplied). This rating decision did not adjudicate her entitlement to a higher initial rating for the entire period or the correct effective original claim. date on her pending The Veterans Court's finding that "the appellant's initial [original] claim was subject to an administrative decision that became final for purposes of direct appeal no later than December 1989" was based on its implicit misinterpretations of an "original claim" and a "finally adjudicated 26

38 claim" under 38 C.F.R (b), (d) and a claim for an increased rating under 38 C.F.R (a), (b); 3.160(f). Due to its misinterpretations of these regulations defining these types of claims, the Veterans Court improperly concluded that Ms. Rancher's pending, unadjudicated original claim under 38 C.F.R (b) was denied by a rating decision to a new claim for an increased rating under 38 C.F.R (a), (b) or under 3.160(f). t is respectfully submitted that if the Veterans Court had correctly interpreted these regulations defining an "original claim" and a claim for increased rating the court would not have reached the conclusion that the December 1988 rating decision denied her original claim and she would have prevailed in her appeal. The Appellant moves the Court to conclude and hold that the Veterans Court misinterpreted these regulations and as a result improperly denied her appeal. 27

39 i. THE VETERANS COURT MSNTERPRETED THE VA'S DUTY TO STATE REASONS AND BASES FOR TS CONCLUSON THAT THE APPELLANT HAD WTHDRAWN HER TDU CLAM AND MSNTERPRETED THE VA'S DUTY TO LBERALLY CONSTRUE ANY DOCUMENT THAT PURPORTS TO WTHDRAW A CLAM. Prior to the Board's May 2001 decision, Ms. Rancher had filed a June 2000 letter with the VA Regional Office which the Board concluded was her withdrawal of her TDU claim (A. 101 ). The Appellant respectfully submits that her letter was ambiguous; it stated as follows: (A ). (Allison E. Rancher) am requesting that the letter dated June 22, 2000 be withdrawn and destroyed with the Notice of Disagreement for the 100% for paranoid schizophrenia to be rated ndividual Unemployability. n other words, want to keep the rating 100% for paranoid schizophrenia and decline to have the rating changed to ndividual Unemployability status. f have caused any trouble in this matter am sorry. Therefore, want to remain 100% for paranoid schizophrenia and not be granted 100% ndividual Unemployability status at this time. (emphasis supplied). n November 2000 and in January 2001, Ms. Rancher's lay representative filed two pleadings in which she claimed entitlement to TDU benefits (A , 95-99). 28

40 Without any discussion of its reasons or bases, the Board in its May 2001 concluded, "t]hereafter, in June 2000, the veteran withdrew the TDU claim from appeal. See 38 C.F.R (2000). Consequently, that claim is no longer before the Board." (A. 101). The Board did not make a finding of fact that Ms. Rancher's letter was ambiguous or unambiguous. The Board did not state any reason or bases for its conclusion that that she had withdrawn her TDU claim. The Board did not refer to the November 2000 and January 2001 written pleadings raising the issue of entitlement to TDU. The Board did not discuss whether Ms. Rancher's mental disability permitted her to have the mental capacity to make a knowing and voluntary waiver of her TDU claim. The Board did not discuss its duty to liberally construe all pro se pleadings filed by Ms. Rancher and failed to address "the Congressional mandate that the VA is to 'fully and sympathetically develop the veteran's claim to its optimum before decision on its merits.'" Hodge v. West, 155 F.3d 1356, (Fed. Cir. 1998). Before the Veterans Court, the Appellant raised these issues. She argued that "t]he veteran who is totally disabled due to her schizophrenia did no tt intend to withdraw her TDU claim in her June 28, 2000 letter; she was merely stating that she did not want the granted 100% schedular rating changed." (A. 113). The Appellant also argued that the Board's May 2001 decision "did not refer to the representative's brief or state adequate reasons 29

41 and bases for its conclusion that she 'withdrew the TDU claim from appeal.' (R. 2) [A. 101]" (A ). n her motion for reconsideration, the Appellant raised the same issues. She also argued that "[a]t the time of the Board's May 2001 decision, the Board was required to adjudicate the disputed TDU issue because the representative had corrected the record and placed the claim in issue. See Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)." n Hamilton, the Veterans Court held that "a corollary of that rule is that where, as here, the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor BVA has authority to adjudicate those specific claims, absent a subsequent request or authorization from the claimant or his or her representative." n her motion for reconsideration, the Appellant also argued that in adjudicating whether Ms. Rancher had validly withdrawn her TDU claim, the VA and Board were required, but failed, to read and construe all communications from apro se veteran in a sympathetic manner and grant all possible benefits. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (The Court stated any "ambiguity" in the veteran's earlier pleadings "should be resolved in favor of the veteran."); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Board failed to read and construe Ms. Rancher's pro se pleadings in a sympathetic manner and resolve any 30

42 ambiguity in her favor. The Board merely concluded, "Thereafter, in June 2000, the veteran withdrew the TDU claim from appeal. See 38 C.F.R (2000). Consequently, that claim is no longer before the Board." (A. 101). The Board ignored the representative's written correction of this issue in January 2001 (A. 90). The Board improperly interpreted its duty to make a decision based on all evidence and relevant law. See 38 U.S.C. 7104(d). The Veterans Court had accepted the Board's legally erroneous interpretations. n its October 2007 decision, the Veterans Court concluded solely that the Board's finding that Ms. Rancher's TDU claim was withdrawn is not clearly erroneous. The Court stated in relevant part as follows: The appellant argues that she did not withdraw her appeal from the RO's denial of her TDU claim. See 38 C.F.R (2007). An appeal may be withdrawn with respect to any or all issues, ld. at (a)... VA has an obligation to liberally construe any document that purports to withdraw an appeal. See Kalman v. Principi, Vet.App. 522, 524 (2004). The Court reviews the Board's determination that a document was sufficient to withdraw an appeal under the "clearly erroneous" standard. d. (citing 38 U.S.C. 7261(a)(4)) (p. 13). The Board's finding that the appellant's TDU claim had been withdrawn is not clearly erroneous. As noted in Part, supra, the RO in June 2000, received a letter from the appellant (R. at ) [A. _ ], which included her name, claim number, and a statement requesting that her NOD from the RO's decision on her TDU claim "be withdrawn and destroyed." d. Though the appellant argues on appeal that she "did not intend to 31

43 l l l l (A ). withdraw her TDU claim," (Br. at 5) [A. ] (emphasis in original), the Court cannot conclude that the Board's contrary finding was in error given the plain and unambiguous language used in her June 2000 letter. The Court, therefore, rejects the appellant's argument on this issue. (emphasis supplied). When reviewing the question of a claimant's withdrawal of an appeal to the Board, the Court must take into consideration "the nonadversarial setting of the [VA] claims adjudication process," senbart v. Brown, 7 Vet. App. 537, 541 (1995), during which VA is required to construe liberally all submissions by a claimant, see EF v. Derwinski, 1 Vet. App. 324, 326 (1991); see also Verdon v. Brown, 8 Vet. App. 529, 533 (1996) (holding that when it is ambiguous whether a claim is withdrawn in a written letter, "it is not sufficient for the Board to conclude there was an abandonment without providing an adequate statement of reasons or bases to support that conclusion"); 38 C.F.R (2004) (arguments within the Substantive Appeal to Board will be construed "in a liberal manner for purposes of determining whether they raise issues on appeal"). The Board's determination on whether Ms. Rancher's June 2000 letter to the RO constituted a withdrawal of her appeal is a finding of fact that the Court reviews under the "clearly erroneous" standard of review set forth in 38 U.S.C. 7261(a)(4) (Court shall "hold unlawful and set aside" clearly 32

44 erroneous factual findings ). Cf. Hanson v. Brown, 9 Vet. App. 29, 32 (1996) (applying "clearly erroneous" standard of review involving withdrawal of a claim at the RO). "'A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948)). f the Board's "'account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it.'" Gilbert, supra (quoting Anderson v. City of Bessemer City, 470 U.S. 564, , 84 L. Ed. 2d 518, 105 S. Ct (1985)). Although the Veterans Court referred to the clearly erroneous standard (A. 8), its consideration of the "entire record" was limited to Ms. Rancher's June 2000 letter (A ). The Veterans Court recognized that the VA has an obligation to liberally construe any document that purports to withdraw an appeal. The Court misinterpreted the VA's duty. The Court failed to take into consideration "the nonadversarial setting of the [VA] claims adjudication process." The Court misinterpreted the VA duty to construe liberally all submissions by a claimant because the Court ignored the November 2000 and January 2001 written submissions to the VA on the Appellant's TDU 33

45 claim and the Court ignored that the Board had not considered these submissions. The Court failed to consider Ms. Rancher's letter in its context. See Kalman v. Principi, 18 Vet. App. 522, 524 (2004) (veteran's letter "must be understood in its context"). The Veterans Court made an initial and improper finding of fact that Ms. Rancher's letter was "unambiguous." The Board had not made any finding on this issue. Although a court has the authority to find a statute or document to be ambiguous or unambiguous, the Veterans Court does not have the same legal authority to make the initial conclusion that a veteran's pro se pleading is unambiguous. The Veterans Court is required to correctly interpret and apply the VA's duty to liberally consider all of the veteran's pro se pleadings in order to determine what claims she has filed. This duty requires the VA to make the initial findings on these issues. "The question is whether the BVA, as required by Roberson, sympathetically read [Ms. Rancher's] filings." Moody v. Principg supra, at f the Veterans Court had correctly interpreted the VA's duty to liberally construe any document that purports to withdraw an appeal, then the Court would have remanded the matter to the Board so that the VA could perform its duty in the first instance, instead of making the initial finding of fact that Ms. Rancher's letter was "unambiguous." 34