Veteran applied for service connection for hearing loss in 1972, within a year of his separation from service. In October 1973, the VA Regional Office (RO) denied the claim, finding that he did not currently have hearing loss.
He did not appeal the decision, but two months later, he submitted a private audiogram from 1973, which showed current hearing loss. The RO never responded to that submission.
In December 1999, the veteran requested to reopen his claim, and the RO denied this request. The 1973 audiogram was not included on the list of evidence considered in making this decision. Again, the veteran did not appeal the denial and it became final.
In February 2007, the veteran again asked the RO to reopen his claim, and the RO again denied the request. Again, the list of evidence did not include the 1973 audiogram.
In July 2008, the RO received medical opinions linking the veteran’s hearing loss to his service. The RO reopened the claim and awarded service connection for hearing loss, rated 100% disabling, from February 2007, the date of the most recent request to reopen. This time, the veteran appealed the effective date assigned. The RO denied an earlier effective date and the veteran appealed to the Board.
At a Board hearing, the veteran argued that the effective date should be August 16, 1973, the date of his initial claim, because the RO never addressed the 1973 audiogram. The Board rejected the veteran’s argument, finding that the October 1973 decision became final when the RO denied the substance of the hearing loss claim in 2003 and the veteran failed to appeal that decision.
The veteran appealed to the CAVC. Relying on the Federal Circuit’s holding in Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014), the Court determined that under 38 C.F.R. § 3.156(b), the October 1973 decision did not become final because the RO never responded to the veteran’s submission of the 1973 audiogram. The Court discussed the relevant case law that interprets § 3.156(b) to require VA to expressly consider any new evidence submitted within the one-year appeal period following a final rating decision. Citing Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009) and Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011).
The Court found that this case was factually and procedurally similar to the situation in Beraud, in which the Federal Circuit held that VA’s failure to determine whether Mr. Beraud’s submission was “new and material,” as required by § 3.156(b), his 1985 claim remained pending – even though the RO had subsequently denied the same claim in later decisions. The reason those decisions did not extinguish the pending status of the 1985 claim was because none of those decisions addressed Mr. Beraud’s submission. The Court in Beraud distinguished its decision in Williams v. Peake, 521 F.3d 1348 (Fed. Cir. 2008), which held that a later final decision on a claim that is identical to a pending claim will terminate the pending status of that claim, “by noting that Williams did not involve VA’s obligations under § 3.156(b) or the submission of new evidence within the one-year appeal period following an RO decision.”
The Court thus held that because “VA never issued a decision ‘directly responsive’ to Mr. Mitchell’s December 1973 submission [the audiogram],” his 1972 claim remained pending. The Court stated that § 3.156(b) “suspends finality in the decision to which it applies until VA takes the action required” and that “the right created by § 3.156(b) does not evaporate when the agency issues an intervening decision that resolves the claim in question without addressing the evidence that gave rise to the agency’s § 3.156(b) responsibilities.”
In a strongly worded dissent, Judge Kasold characterized the determination required by § 3.156(b) as “interlocutory” and questioned the majority’s expansion of the scope of Beraud in this case. As the majority pointed out, Judge Kasold presented arguments that the Federal Circuit already rejected in Beraud. Judge Kasold proposed that the Federal Circuit should consider overruling Beraud en banc. However, as the majority also noted, the Federal Circuit already denied the government’s petition for an en banc rehearing in Beraud.