Veteran requested to reopen a previously denied claim for benefits in 2005. VA reopened and denied the claim in 2006 and the Board affirmed the denial in 2009. While the appeal was pending at the CAVC, the veteran changed representatives. He filed a VA Form 21-22a in March 2010, naming a private attorney as his representative in place of Disabled American Veterans (DAV). The new counsel requested a copy of the veteran’s claims file at that time.
In June 2010, the new counsel and the Secretary entered into a joint motion to remand a portion of the Board’s decision to address several errors. The JMR stated that the veteran should be able to submit additional evidence and argument in support of his claim. The Board took over the case and issued a “90-day letter,” dated August 6, 2010, notifying the veteran that he could submit additional argument or evidence “within 90 days of the date of this letter.” The letter was sent to the veteran and his former representative, DAV, but not to his current counsel.
In December 2010, VA sent the new counsel a copy of the veteran’s claims file. Although the attorney had requested the file before the 90-day letter had been issued, the file contained a copy of that 90-day letter. The attorney did not review the file immediately upon receipt and did not see the letter.
The Board acted on the JMR and issued a new decision in February 2011, continuing to deny the veteran’s claim. As with the 90-day letter, the Board did not send a copy of its decision to the attorney at the time it was issued. She did not receive the decision until December 2011, at which point she appealed to the CAVC.
Before that Court, the veteran argued that had the Board properly provided his attorney with the 90-day letter, he would have submitted new evidence and new argument, specifically, a new theory of entitlement that appeared to have been “reasonably raised” by the evidence of record. The CAVC affirmed the Board’s decision, holding that any notice error was cured by counsel’s receipt of her client’s complete claims file – even though the deadline to submit new evidence had expired by then. The Court also concluded that the parties “may agree to narrow the scope of the Board’s obligation to review the record on remand.” The veteran appealed to the Federal Circuit.
The Federal Circuit did not disturb the CAVC’s holding regarding the parties’ ability to narrow the scope of the Board’s duties on remand. The only issue before the Federal Circuit was the legal correctness of the CAVC’s rationale for finding that the notice error had been cured. The Court held that – as a matter of law – the Board’s notice error was not cured when it sent the 90-day letter to the attorney in the veteran’s claims file after the deadline to respond had passed.
The Court relied on VA’s own regulations (specifically, 38 C.F.R. §§ 1.525(d) and 14.629) that require VA to provide a veteran’s “recognized attorney … with a copy of each notice to the claimant respecting the adjudication of the claim.” The Court held that this “regulatory requirement of notice can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed.” Providing the 90-day letter – buried in a claims file – did not “cure” the notice defect. The Court stated that “a ‘cure’ of the notice defect must mean some source providing notification of the same opportunity a correct notice would have provided. There was no such cure here.”
The Federal Circuit acknowledged the CAVC’s citation to Matthews v. Principi, 19 Vet.App. 23 (2005), which held that “an attorney’s receipt of a Statement of the Case contained in a response to a request for a veteran’s claims file . . . constituted the required mailing, which then started the clock for filing an appeal.” However, the Federal Circuit determined that the context in Matthews was different from the present case.
The Federal Circuit further held that the CAVC’s determination that Mr. Carter’s counsel was not “‘prevented from presenting’ evidence does not mean that the Board was obliged to consider the evidence as if timely submitted...”. The Court thus concluded that the CAVC “legally erred in finding a cure of the notice defect,” and that this error was not harmless, and remanded to the CAVC with directions to remand the case back to the Board so that the veteran could submit new materials in accordance with the prior JMR.