Betzaida P. Jernigan v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1226
BETZAIDA P. JERNIGAN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued March 28, 2012 Decided June 19, 2012)
David J. Lowenstein, of Richmond, VA, with whom Todd M. Wesche, formerly of Arlington,
VA, was on the brief, was on the pleading for the appellant. Mr. Lowenstein argued before the
Court.
Mark D. Vichich, of Washington, D.C., with whom Will A. Gunn, General Counsel; R.
Randall Campbell, Assistant General Counsel; and David L. Quinn, Deputy Assistant General
Counsel, all of Washington, D.C, were on the brief, was on the pleading for the appellee. Mr.
Vichich argued before the Court.
Before HAGEL, DAVIS, and SCHOELEN, Judges.
HAGEL, Judge: Betzaida P. Jernigan appeals through counsel a March 23, 2010, Board of
Veterans' Appeals (Board) decision that denied entitlement to an effective date earlier than October
31, 2001, for the award of VA disability benefits for gastroesophageal reflux disease, a lumbosacral
strain, and an appendectomy scar.1 Ms. Jernigan's Notice of Appeal was timely and the Court has
jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). This matter was referred
to a panel of the Court to determine whether the timing requirement in 38 C.F.R. § 3.155(a) (1995)
1
The Board also remanded claims for benefits for a right shoulder disability, labyrinthitis with vertigo, and
tension headaches, as well as the issue of entitlement to an earlier effective date for the award of a total disability rating
based on individual unemployability. Accordingly, those matters are not before the Court at this time. See 38 U.S.C.
§ 7266 (stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344
(Fed. Cir. 2000) (Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b)
(1999))).
within which a veteran must submit a formal application form was a valid exercise of the Secretary's
rulemaking authority and whether the Secretary has a duty to notify claimants of that timing
requirement. For the reasons set forth below, the Court will affirm the March 2010 Board decision.
I. FACTS
Ms. Jernigan served on active duty in the U.S. Navy from April 1989 to May 1995.
In July 1995, Ms. Jernigan submitted a VA Form 21-4138, Statement in Support of Claim,
in which she stated that she suffered from, among other conditions, back, spinal, and stomach
disabilities. On that form, Ms. Jernigan included her full name, Social Security number, and mailing
address. She also enclosed several service medical records in support of her claims that indicated
that she served in the Navy. In an August 1995 letter, VA responded. The relevant paragraphs of
the letter read:
Please note the paragraph(s) checked below: IGNORE ANY PARAGRAPH NOT
CHECKED.
G 1. The evidence requested below should be submitted as soon as possible,
preferably within 60 days, and in any case it must be received in the VA within one
year from the date of this letter; otherwise benefits, if entitlement is established, may
not be paid prior to the date of its receipt.
} a. The enclosed form(s) should be completed and returned to this
office so that further action may be taken on your claim.
Record (R.) at 2185. Only paragraph 1a was checked. The letter indicated that "1-526" was
enclosed; Form 1-526 (now Form 21-526) was VA's formal application form.2
After more than six years of silence, in October 2001 Ms. Jernigan submitted a completed
VA Form 21-526, Veteran's Application for Compensation or Pension, seeking disability benefits
for, among other conditions, back and stomach disabilities. In a statement submitted with the
application, Ms. Jernigan wrote:
2
Although frequently used both by VA and the Court, the term "formal claim" is not defined by statute or
regulation. As far as the Court can determine, the use of this term flows from 38 C.F.R. § 3.160(b), which defines an
"original claim" as "An initial formal application on a form prescribed by the Secretary," and referring to 39 C.F.R.
§§ 3.151 (Claims for disability benefits) and 3.152 (Claims for death benefits). See also Norris v. West, 12 Vet. App.
413, 416 (1999) ("A formal claim is one that has been filed in the form prescribed by the Secretary.").
2
I previously filed a claim for compensation at time of discharge. The [veterans
service organization] officer assisted with this claim. However[,] VA sent claim
back paperwork requesting additional forms be filled out. (See attached original
paperwork sent in along with 5 pages of [service medical records]). I again request
consideration for compensation for my back [and] . . . stomach condition[s] . . . . I am
now enclosing VA [Form] 21-526 along with the original papers from 1995.
R. at 2171. Ms. Jernigan's application was submitted with a letter from her authorized representative
that stated, "Please accept the attached material as an original application for benefits." R. at 2169.
In July 2002, a VA regional office granted disability benefits for gastroesophageal reflux
disease, chronic lumbosacral strain, and residuals of an appendectomy scar, all effective as of
October 31, 2001, the date VA received Ms. Jernigan's completed Form 21-526, which it treated as
an original claim for benefits. Ms. Jernigan filed a Notice of Disagreement with the effective dates
assigned. She asserted:
I submitted an informal claim on a [Form] 21-4138 on July 21, 1995, which was
received in the [regional office] on July 31, 1995. Subsequent to VA receiving the
documents, VA returned all original claim documents to me, with no letter of
explanation. I contend that specific error[s] of fact or law in the process of the
recording of my claim . . . and failure of the VA to notify me of further action
required, were made.
R. at 1895. She ultimately appealed to the Board.
In March 2010, the Board issued the decision on appeal. The Board determined that, as a
matter of law, an effective date prior to October 31, 2001, could not be awarded. Specifically, the
Board relied on the combination of 38 U.S.C. § 5101(a) and 38 C.F.R. §§ 3.151(a) and 3.155(a) to
conclude that, because Ms. Jernigan did not return the formal application form to establish her
original claim, see 38 C.F.R. § 3.160(b), within one year of August 1995, the earliest possible
effective date for her disability benefits was the date of her properly filed original claim, October 31,
2001.
In her briefs, Ms. Jernigan argued that (1) the requirement in 38 C.F.R. § 3.155(a) that she
return the formal application form within one year of receiving it was not in accordance with the law
and should be struck down; (2) there is no substantive necessity to file a claim on a particular form;
and (3) VA violated her right to due process when it failed to inform her of the time limit to return
the form and the consequences for failing to do so. At oral argument, however, Ms. Jernigan framed
3
the issues as: "What is the proper effective date" for her award of benefits and "What is an
application?" She conceded that she received VA's August 1995 letter with Form 1-526 attached
and did not dispute that she did not return the form to VA within one year of receiving it. At oral
argument, neither party raised or discussed due process or the Secretary's authority to implement a
time limit in § 3.155(a).
II. ANALYSIS
A. Form and Timing of Claim
The effective date for an award of compensation benefits is the date of VA's receipt of the
application or the date entitlement to the benefit arose, whichever is later. 38 U.S.C. § 5110(a);3
38 C.F.R. § 3.157(a) (2011). VA defines "Claim–Application" as "a formal or informal
communication in writing requesting a determination of entitlement or evidencing a belief in
entitlement, to a benefit." 38 C.F.R. § 3.1(p) (1995).4 The parties agree that Mrs. Jernigan's July
1995 submission was an informal claim. "Upon receipt of an informal claim, if a formal claim has
not been filed, an application form will be forwarded to the claimant for execution. If received
within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of
receipt of the informal claim." 38 C.F.R. § 3.155(a) (2011). This means that, where a claimant
submits an informal claim and then submits the formal application form required by VA within one
year of receiving it, if benefits are granted as a result of the claim, the effective date for payment of
benefits will be the date VA received the informal claim.
1. Necessity of Formal Application Form
To the extent that Ms. Jernigan wishes to stand on the argument in her brief that no formal
application form is required, the Court finds this assertion unpersuasive. Congress granted the
Secretary the authority "to prescribe all rules and regulations which are necessary or appropriate to
3
Specifically, section 5110(a) provides:
Unless specifically provided otherwise in this chapter, the effective date of an award based on an
original claim, a claim reopened after final adjudication, or a claim for increase, of compensation,
dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts
found, but shall not be earlier than the date of receipt of application therefor.
4
This regulation remains unchanged.
4
carry out the laws administered by [VA] and are consistent with those laws, including . . . the forms
of application by claimants under such laws." 38 U.S.C. § 501(a)(2). Congress also provided that
"[a] specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to
be paid or furnished to any individual under the laws administered by the Secretary." 38 U.S.C.
§ 5101(a). The Secretary's interpretation of those statutes as requiring a formal application form has
long been accepted by the Court because the form contains particular features that informal claims
typically do not. See Fleshman v. Brown, 9 Vet.App. 548, 551 (1996) (stating that the certification
and execution requirement contained in the formal application form "is an essential element of the
form prescribed by the Secretary and affords evidentiary significance to the statements contained on
the application and serves as a release to allow VA to obtain the applicant's medical records"). To
the extent that no formal finding has been made that the Secretary's interpretation of sections
501(a)(2) and 5101(a), contained in § 3.155(a), as requiring that VA receive a formal application
form before benefits may be paid is a valid exercise of the Secretary's rulemaking authority, we make
such a finding today.5, 6 See Mayo Foundation for Medical Educ. and Research v. United States,
5
This holding should not be construed as overruling prior cases in which the Court has determined that a formal
application form was not required. See, e.g., Quarles v. Derwinski, 3 Vet.App. 129, 137 (1992) (holding that, where VA
never sent the claimant a formal application form pursuant to § 3.155, the one-year time period to return it could not have
begun to run and therefore the effective date of the claim was the date of the informal claim).
Similarly, our holding does not affect claims filed in situations in which the Secretary's own regulations specify
that the formal application form contemplated by § 3.155(a) is not necessary. See, e.g., Norris, 12 Vet.App. at 417
(holding that, where the claimant was already service-connected for a psychiatric disability and a medical record
indicated that his conditioned worsened, no formal application for a total disability rating based on individual
unemployability was required because (1) a total disability rating based on individual unemployability is simply another
way to get a 100% rating and (2) § 3.157(a) provides that medical examinations that show a worsening of an already
service-connected condition are themselves informal claims for increases); 38 C.F.R. § 3.154 ("VA may accept as a claim
for benefits under 38 U.S.C. § 1151 . . . any communication in writing indicating an intent to file a claim . . . under the
laws governing entitlement to veterans' benefits for disability or death due to VA hospital care, medical or surgical
treatment, examination, training and rehabilitation services, or compensated work therapy program, whether such
communication is contained in a formal claim . . . or in any other document.").
6
The Court acknowledges that there may be instances in which VA has acted on informal claims and granted
benefits without a formal application ever being filed. However, the question raised by this case is whether VA's
requiring a formal application form is a valid exercise of the Secretary's rulemaking authority. We hold that it is. If VA
opts in some cases to treat informal claims as de facto applications, that is consistent with a veteran-friendly mandate
and should be encouraged when possible (such as when a veteran is otherwise diligently pursuing his claim, unlike Ms.
Jernigan). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (stating that "[t]his court and the Supreme Court
both have long recognized that the character of the veterans' benefits statutes is strongly and uniquely pro-claimant" and
describing "the historically non-adversarial system of awarding benefits to veterans"); Trilles v. West, 13 Vet.App. 314,
326 (2000) (en banc) (describing "the VA pro-claimant nonadversarial claims adjudication process"). If VA opts not
to, however, the statute and regulation do not permit the Court to force VA to do so.
5
131 S. Ct. 704, 711 (2011) (Mayo Foundation) (holding that, under Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837 (1984), courts "may not disturb an agency rule unless it is
'arbitrary or capricious in substance, or manifestly contrary to the statute'").
2. Timing and Effect of Return of Formal Application Form
a. Timing
In her briefs, Ms. Jernigan argues that, even if a formal application form is required, there
is no statutory basis for the Secretary's one-year timeframe within which to return the formal
application form created by § 3.155(a).
As briefly alluded to above, when an agency, through a formally promulgated regulation,
interprets a statute it is charged with administering, judicial review of that interpretation is governed
by the two-step inquiry articulated by the Supreme Court in Chevron. Under Chevron, the court
must first determine "whether Congress has directly spoken to the precise question at issue."
467 U.S. at 842. If Congress has, "that is the end of the matter," and the only question remaining is
whether the regulation at issue is in accordance with congressional intent. Id. at 842-43. Although,
section 5103 (1995) stated that "if such evidence is not received within one year from the date of
such notification, no benefits may be paid or furnished by reason of such application" Congress did
not directly speak to the timing of an application for benefits in sections 501(a)(2) and 5101(a).
Where, as here, Congress has not directly spoken to the precise issue, there is a "gap" for the
agency to fill. See Gallegos v. Principi, 283 F.3d 1309, 1312 (Fed. Cir. 2002). In this second step
of the Chevron inquiry, courts may not disturb an agency rule unless it is "arbitrary or capricious in
substance, or manifestly contrary to the statute." Mayo Foundation, 131 S. Ct. at 711. Instead,
courts will defer to an agency's "reasonable interpretation" of the statute. Id. at 714; Gallegos,
283 F.3d at 1312. Here, the question is this: Is the Secretary's creation of a time limit to file a formal
application form a reasonable interpretation of Congress's direction that VA prescribe the "form" in
which applications for benefits may be made? We hold that it is.
"Form" has several definitions, but for these purposes, the Court finds that the most
appropriate definition is, "[e]stablished behavior or procedure, usu[ally] according to custom or
6
rule." BLACK'S LAW DICTIONARY 723 (9th ed. 2004) [hereinafter BLACK'S].7 Under this definition,
it is eminently reasonable to interpret "form"–that is, the procedure for filing an application for
benefits–to include a timing requirement, particularly in the context of VA, where finality often plays
a crucial role. See 38 U.S.C. §§ 7105(b)(1), (c) ("[A] notice of disagreement shall be filed within
one year from the date of mailing of notice of the result of initial review or determination. . . ." "If
no notice of disagreement is filed . . . within the prescribed period, the action or determination shall
become final."); 38 U.S.C. § 5109A(a) ("A [final] decision by the Secretary . . . is subject to revision
on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision
shall be reversed or revised."); 38 U.S.C. § 5103 (1995) ("If such evidence is not received within one
year from the date of such notification, no benefits may be paid or furnished by reason of such
application."); 38 U.S.C. § 5108 ("If new and material evidence is presented or secured with respect
to a claim which has been [finally] disallowed, the Secretary shall reopen the claim and review the
former disposition of that claim."); Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc)
(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); Russell v. Principi,
3 Vet.App. 310, 315 (1992) ("[T]here is finality in veterans' benefits jurisprudence. . . . Once there
is a final decision on the issue of 'clear and unmistakable error' because the [regional office] decision
was not timely appealed . . . that particular claim of 'clear and unmistakable error' may not be raised
again.").
Further, VA was reasonable in establishing the one-year timing requirement for the return
of the formal application form. Section 5103(a) (1995) states that if the application for benefits is
incomplete, the Secretary shall notify the claimant of the evidence necessary to complete the
application, and if that evidence "is not received within one year from the date of such notification,
no benefits may be paid or furnished by reason of such application." See also 38 C.F.R. § 3.158(a)
(1995) (stating that, where requested evidence is not received within one year of the date of the
7
Other definitions include: "1. The outer shape or structure of something, as distinguished from its substance
or matter . . . . 3. A model; a sample; an example . . . . 4. The customary method of drafting legal documents, usu[ally]
with fixed words, phrases, and sentences . . . . 5. A legal document with blank spaces to be filled in by the drafter . . . ."
BLACK'S at 723
7
request, "further action will not be taken unless a new claim is received.").8 Therefore, based on the
language of section 5103, it was not "arbitrary or capricious in substance, or manifestly contrary to
the statute" for VA to require that a formal claim be filed within one year of notification. Mayo
Foundation, 131 S. Ct. at 711.
Although Ms. Jernigan argues that VA is not permitted to "'disguise the creation of additional
requirements or limitations as interpretive regulations,'" Appellant's Brief (Br.) at 13 (quoting
Davenport v. Brown, 7 Vet.App. 476, 482 (1995)), that is simply not what happened with the
promulgation of § 3.155(a). Congress expressly delegated authority to VA to determine the
appropriate "forms of application." 38 U.S.C. § 501(a)(2); see also 38 U.S.C. § 5101(a). That
express delegation, along with the Court's determination that the Secretary's interpretation of "form"
to include a timing requirement is reasonable, is sufficient to hold that § 3.155(a) is not "arbitrary
or capricious in substance, or manifestly contrary to the statute." Mayo Foundation, 131 S. Ct. at
711.
b. Effect
At oral argument, Ms. Jernigan conceded that a formal application form is required for VA
to adjudicate a claim and award benefits, but argued that, in her case, the calculation of the amount
of benefits to be paid should be calculated from the date VA received the informal claim, regardless
of the date VA received the formal application form. In support of this argument, Ms. Jernigan
relied on section 5110(a), the effective date statute, and § 3.1(p), which contains VA's definition of
a claim. Ms. Jernigan asserted that, because section 5110(a) states that the effective date of an award
is based on the date of the application and § 3.1(p) defines application as either an informal or formal
writing that evinces an intent to seek benefits, the effective date of any benefits awarded must, in this
case, be the date VA received her informal claim.9 This interpretation is without merit.
Where only an informal claim has been submitted and the claimant has failed to complete
and return a formal application that he or she received from the Secretary, the application for benefits
8
This regulation remains unchanged.
9
Ms. Jernigan attempts to bolster her position by asserting that her July 1995 informal claim had all the
attributes of a formal claim. Because, however, VA's requirement of a formal application form is a valid exercise of the
Secretary's rulemaking authority, it makes no difference what information Ms. Jernigan's July 1995 informal claim
contained; a formal application form was a necessity.
8
is not in the form prescribed by the Secretary and is considered incomplete. See Fleshman,
9 Vet.App. at 551 ("The appellant's unexecuted claim form was an informal claim and would not
have been in the form prescribed by the Secretary until he returned it with the requested
information.") (citing Kluttz v. Brown, 7 Vet.App. 304, 306-07 (1994); 38 C.F.R. § 3.155(a)); see
also Quarles, 3 Vet.App. at 137 (holding by implication that, where a claimant fails to return to the
Secretary a formal claim application within one year of the submission of his informal claim, his
informal claim is not a "cognizable claim for effective date purposes"). A claimant's attempt to
establish an original claim remains incomplete until the formal application form is returned with all
of the requested information. See 38 U.S.C. § 5103(a) (1995);10 Fleshman, 9 Vet.App. at 552; 38
C.F.R. § 3.160(b).
Section 5110(a) provides: "Unless specifically provided otherwise in this chapter, the
effective date of an award based on an original claim . . . shall be fixed in accordance with the facts
found, but shall not be earlier than the date of receipt of application therefor." (Emphasis added.)
Chapter 51 includes section 5103(a), which, in 1995, stated, in addition to that portion given above,
that if the missing evidence was not received by VA within one year of the request, "no benefits may
be paid or furnished by reason of such application." 38 U.S.C. § 5103(a) (1995).11 This portion of
section 5103(a) expressly ruled out the possibility of an effective date as of the date VA received an
informal (that is, incomplete) claim if the missing evidence was not received within one year of VA's
request.
10
Today, section 5103(a) provides, in pertinent part:
Upon receipt of a complete or substantially complete application, the Secretary shall notify the
claimant and the claimant's representative, if any, of any information, and any medical or lay evidence,
not previously provided to the Secretary that is necessary to substantiate the claim. As part of that
notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be
provided by the claimant and which portion, if any, the Secretary, in accordance with section 5103A
of this title and any other applicable provisions of law, will attempt to obtain on behalf of the claimant.
38 U.S.C. § 5103(a)(1).
11
Today, this portion is codified at 38 U.S.C. § 5103(b): "In the case of information or evidence that the
claimant is notified under subsection (a) is to be provided by the claimant, such information or evidence must be received
by the Secretary within one year from the date such notice is sent."
9
To the extent that Ms. Jernigan, in her briefs, attempts to distinguish section 5103(a)'s request
for "evidence" to complete the application, as opposed to "information" of the type that would be
provided on a formal application form, the Court has already addressed this question and held that
"evidence" in the 1995 statute encompassed "information" as well. Robinette v. Brown, 8 Vet.App.
69, 79 (1995); see Davis v. Shinskei, 22 Vet.App. 352, 354 (2009) ("As interpreted by the Court, [the
1995 version of section 5103(a)] required the Secretary to both notify a claimant regarding
information needed to complete an application for benefits and to specifically advise a claimant who
refers to the existence of relevant evidence to submit that evidence." (emphasis added)).12 In
Robinette, the Secretary attempted to argue that the word "evidence" in section 5103(a) (1995) meant
"that he must do no more than notify the claimant of what information is needed to 'complete' the
claim form—for example, a social security number." 8 Vet.App. at 77. The Court held that such
an interpretation was too narrow a view of the word. After analyzing the ordinary meaning of the
word "evidence," the Court stated:
The Secretary's interpretation of the language in section 5103(a) [(1995)] to mean
only that the Secretary must help the person 'fill in the information required by the
blanks on the form,' such as a social security number, conflicts with the plain
meaning of 'evidence'. That 'evidence' means more than just information to be filled
in on the application form, and that an application includes the form plus evidence
in support of the claim flows not only from the plain meaning of the term but also
from the VA Adjudication Procedure Manual, M21-1 (MANUAL M21-1). The
MANUAL M21-1 provides as follows:
e. Defective or Incomplete Application Forms. If an application is
properly signed but is so incomplete that development for the specific
information is not feasible, make a copy of the application and retain
it as the file copy. Return the original application to the claimant with
a request to complete the indicated items checked in red. Ask the
claimant to return it with any other required evidence.
Id. at 78 (emphasis added; bold in original) (citation omitted). It is clear from this discussion that,
in 1995, "evidence" in section 5103(a) also encompassed the "information" normally included on
12
As a result of the Veterans Claims Assistance Act of 2000, the duties of the Secretary to advise the claimant
of missing information to complete the application and to advise the claimant of the evidence necessary to substantiate
his claim have been explicitly separated, the former now appearing at 38 U.S.C. § 5102(b) and the latter, as noted in
footnote 9, above, at 38 U.S.C. § 5103(a)(1). In 1995, however, the duties were contained in a single statute that used
the word "evidence," which was interpreted in Robinette to include the information necessary to complete an application.
10
the formal application form. See id. at 79 ("[T]he Court reaffirms that section 5103(a) [(1995)]
imposes more of an obligation on the Secretary than merely to advise of the need to 'complete' all
blanks on the claim form.").
In light of this discussion, the Court concludes that, in most cases, the return of the formal
application form controls the determination of the proper effective date, should benefits be awarded;
that is, if it is returned within one year, the effective date is the date of the informal claim, and if it
is not, the effective date is the date that it is returned. But see, e.g., Quarles, 3 Vet.App. at 137;
Norris, 12 Vet. App. at 416; 38 C.F.R. §§ 3.154, 3.157. Specifically, if Form 21-526 is returned
within one year of its receipt–a time period the Court has now determined is a reasonable
interpretation of authorizing statutes–the effective date will be the date of the informal claim. 38
C.F.R. § 3.155(a). If it is not, the effective date will be the date of VA's receipt of the formal
application form. See 38 U.S.C. § 5103(a) (1995); 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.158(a),
3.160(b).
B. Duty To Notify
At oral argument, Ms. Jernigan asserted that, because the August 1995 notice she received
from VA accompanying the formal application form was misleading or confusing, VA may not
penalize her for failing to return the form within one year by denying her an effective date as of the
date of her informal claim.13 This argument, however, assumes that VA had a duty to notify
claimants of the timeframe within which to return the claim form.
The Court need not reach this question because, even assuming a duty to notify and defective
notice, there is nothing in the record that indicates that Ms. Jernigan relied to her detriment on the
purportedly misleading notice. See Edwards v. Peake, 22 Vet.App. 29, 34-35 (2008) (citing Day v.
Shalala, 23 F.3d 1052, 1066 (6th Cir. 1994); see also Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th
Cir. 1995); Burks-Marshall v. Shalala, 7 F.3d 1346, 1349 (8th Cir. 1993)). From August 1995 to
October 2001, the record is entirely silent regarding Ms. Jernigan's claim, and she has offered no
explanation on appeal for the 6-year delay in returning Form 21-526 to VA. At oral argument,
counsel for Ms. Jernigan asserted that, although he did not know whether Ms. Jernigan relied on the
13
Before VA, Ms. Jernigan asserted that she did not receive the August 1995 VA letter; however, she
abandoned that assertion before the Court.
11
allegedly misleading notice, one could presume that she had from the notice itself and the subsequent
delay in submitting the formal application form, but he offered no authority for such a presumption,
and our caselaw does not allow it. "The record simply does not support any assertion that the notice
lulled the appellant into failing to act, and [her] arguments must be rejected because they are not
supported by any demonstrable prejudice." Edwards, 22 Vet.App. at 35; see Shinseki v. Sanders,
556 U.S. 396, 409 (2009) (holding that the party asserting notice error has the burden of
demonstrating prejudice).
C. Due Process
In her briefs, Ms. Jernigan contends that the August 1995 VA notice letter "was not adequate
to inform her of the regulatory time limitations by which she must respond or the significant
consequence to her claim if she failed to do so." Appellant's Br. at 15. She asserts that such
deficient notice "amounts to a failure of due process, as it effectively denied her a proper
understanding of her responsibilities." Id. The Court disagrees.
This issue was addressed in one of the Court's earliest cases. In Morris v. Derwinski,
1 Vet.App. 260 (1991), the Court considered whether there was a due process violation where VA
failed to advise a claimant of the abandonment provisions of 38 C.F.R. § 3.158 (1990) and the
consequences of failing to submit the evidence requested by VA. That regulation provides:
[W]here evidence requested in connection with an original claim . . . is not furnished
within 1 year after the date of request, the claim will be considered abandoned. After
the expiration of 1 year, further action will not be taken unless a new claim is
received. Should the right to benefits be finally established . . . compensation . . .
shall commence not earlier than the date of filing the new claim.
38 C.F.R. § 3.158(a). Because § 3.158(a) is a regulation interpreting section 5103(a) (1995),14 and
because that statute's use of the word "evidence" has been interpreted to include "information" such
as that required on the formal application form, Robinette, 8 Vet.App. at 79, we conclude that, at
least in claims controlled by the versions of these statutes and regulations extant in 1995, a claim was
14
In 1991, when Morris was decided, section 5103(a) (1995) was codified at 38 U.S.C. § 3003(a):
If a claimant's application for benefits under the laws administered by [VA] is incomplete, the
[Secretary] shall notify the claimant of the evidence necessary to complete the application. If such
evidence is not received within one year from the date of such notification, no benefits may be paid
or furnished by reason of such application.
12
also abandoned whenever a formal application form was not returned within one year after the date
of its receipt by a claimant, absent special circumstances such as those identified in Quarles,
3 Vet.App. at 137, and Norris, 12 Vet. App. at 416.15, 16 Accordingly, Morris directly controls the
disposition of Ms. Jernigan's due process argument.
In Morris, the Court stated:
Appellant raises a Due Process Clause argument that he was never notified that
claims are subject to abandonment pursuant to 38 C.F.R. § 3.158(a). . . . [T]he
Secretary correctly argues that appellant's contention is without legal merit because
the abandonment pursuant to 38 C.F.R. § 3.158(a) cannot be set aside or waived on
grounds of alleged ignorance of regulatory requirements. The Supreme Court has
held that everyone dealing with the Government is charged with knowledge of
federal statutes and lawfully promulgated agency regulations. Fed. Crop Ins. Corp.
v. Merrill, 332 U.S. 380, 384–85. . . (1947). Thus, regulations are binding on all who
seek to come within their sphere, "regardless of actual knowledge of what is in the
[r]egulations or of the hardship resulting from innocent ignorance." Id. at 385 . . . .
"The 'presumption' that everyone knows the law is simply a more colorful way of
stating the principle that ignorance of the law is irrelevant." 21 C. Wright & K.
Graham, Federal Practice and Procedure § 5124, at 588 (1977) (footnote omitted).
In the case at hand, appellant, even though he may have been ignorant of the
abandonment provisions of 38 C.F.R. § 3.158(a), is necessarily charged with
knowledge of the regulation.
Morris, 1 Vet.App. at 265. It is clear, based on Morris, that Ms. Jernigan's due process argument
based on lack of notice must also fail. Moreover, as discussed above, there is no evidence that Ms.
Jernigan relied on VA's allegedly misleading notice to her detriment. See Day, 23 F.3d at 1066
15
The Court recognizes that it is generally not permitted to affirm the Board's decision on a ground other than
that relied on by the Board. See Newhouse v. Nicholson, 497 F.3d 1298, 1301 (Fed. Cir. 2007) (citing Sec. & Exchange
Comm'n v. Chenery Corp., 332 U.S. 194 (1947) and referring to the "Chenery doctrine"). To the extent that this
statement could be construed as such, the Court notes that the Chenery doctrine is not implicated when "it is clear that
'the agency would have reached the same ultimate result' had it considered the new ground." Fleshman v. West, 138 F.3d
1429, 1433 (Fed. Cir. 1998) (quoting Ward v. Merit Sys. Protection Bd., 981 F.2d 521, 528 (Fed. Cir. 1992)). Moreover,
although the Board did not expressly find that Ms. Jernigan abandoned her July 1995 claim when she failed to return the
formal application form within one year, it found the necessary predicate facts for that conclusion, and there can be no
other characterization of that claim in light of section 5103(a) (1995), Davis, and § 3.158(a).
16
We need not and do not reach the question of whether, under the current versions of these statutes and
regulations, failure to return the requested information (that is, the formal application form, where required) would result
in abandonment of the claim. See 38 U.S.C. § 5102(b). We also note that regardless of whether, as a result of her failure
to return the formal application form within one year, Ms. Jernigan's July 1995 informal claim is characterized as
abandoned or simply non-existent, the effective date of the "original" claim (as defined by 38 C.F.R. § 3.160(b), see fn.2,
supra) filed in October 2001 remains unchanged.
13
(holding that, although the denial notice that claimants received "failed to satisfy the requirements
of due process, the only claimants who could have been injured by the inadequacy are those who
detrimentally relied on the inadequate denial notice"); Gilbert, 45 F.3d at 1394 ( "[A] plaintiff must
demonstrate reliance on the allegedly defective denial notices."); Burks-Marshall, 7 F.3d at 1349(holding that an appellant has no standing to raise a due process issue where he "has not shown that
the alleged deficiency in the notice had any connection in fact with h[is] own failure to seek review
of" the denial of his claim).
In light of the above discussion, the Court concludes that the Board's determination that an
effective date prior to October 31, 2001, for the award of VA disability benefits for gastroesophageal
reflux disease, a lumbosacral strain, and an appendectomy scar was not warranted was not clearly
erroneous. 38 U.S.C. § 7261(a)(4); see Hanson v. Brown, 9 Vet.App. 29, 32 (1996); Gilbert v.
Derwinski, 1 Vet.App. 49, 52 (1990).
III. CONCLUSION
The March 23, 2010, Board decision is AFFIRMED.
14