Appeal from the United States Court of Appeals for Veterans Claims in No. 12-218, Chief Judge Bruce E. Kasold, Judge Lawrence B. Hagel, Judge William A. Moorman.
KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.
MARTIN F. HOCKEY, JR., Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.; DAVID J. BARRANS, MARTIE ADELMAN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
JOHN TAYLOR HEBDEN, Sidley Austin LLP, Washington, DC, for amicus curiae The National Veterans Legal Services Program. Also represented by EUGENE R. ELROD.
Before REYNA, PLAGER, and TARANTO, Circuit Judges.
Taranto, Circuit Judge.
Harmon Carter applied to the Department of Veterans Affairs to reopen an earlier claim for veterans' benefits. After the Board of Veterans' Appeals denied the reopened claim on the merits, Mr. Carter appealed to the Court of Appeals for Veterans Claims, which, by the parties' agreement, remanded to the Board to give Mr.
Carter the opportunity to submit additional evidence. But the Board then failed to give proper notice of the Board-set deadline for filing such evidence, and Mr. Carter missed the deadline. When the Board denied Mr. Carter's claim, without having received new evidence from Mr. Carter, the Veterans Court affirmed. We conclude that the Veterans Court had an incorrect understanding of the law governing the notice defect in this case, and we vacate the Veterans Court's decision and remand for Mr. Carter to have the opportunity to submit his new evidence.
Mr. Carter served in the U.S. Army from 1965 to 1967. In 1989, Mr. Carter filed a claim for disability benefits for an injury to his lower back, which the Department of Veterans Affairs (VA) denied in 1990. He sought to reopen the claim in 2005 by filing new evidence that he had aggravated the injury in the course of his military service. In 2006, the VA reopened Mr. Carter's claim but denied it on the merits, and the Board affirmed in September 2009. While Mr. Carter's appeal to the Veterans Court was pending, Mr. Carter changed counsel. He filed VA Form 21-22a in March 2010, naming a new, private attorney as his representative in place of the Disabled American Veterans. Around the same time, the new counsel also requested a copy of Mr. Carter's complete claim file.
In June 2010, the new counsel and the government negotiated and filed a joint motion in the Veterans Court requesting partial vacatur of the September 2009 Board decision and an order remanding the case for the Board to address several errors in its decision. J.A. 64-69. In the motion, the parties agreed that, " [o]n remand, [Mr. Carter] should be free to submit additional evidence and argument regarding his claim." J.A. 68 (citing Kutscherousky v. West, 12 Vt.App. 369, 372 (1999) (per curiam), and Kay v. Principi, 16 Vt.App. 529, 534 (2002)). The Veterans Court granted the motion on July 6, 2010, remanding the case in accordance with the " instructions in the joint motion," which the court " incorporated . . . by reference." J.A. 70. The court sent the decision to both parties.
The Board took over the matter a month later. It prepared a letter (the " 90-day letter" ), dated August 6, 2010, designed to notify Mr. Carter that his " case ha[d] been received by the Board following issuance of the [Veterans] Court's remand decision," and that proceedings before the Board were ready to begin. J.A. 71. The letter stated that, if Mr. Carter chose " to submit any additional argument or evidence, it must be submitted . . . within 90 days of the date of this letter." Id. (italics added, bold in original); see J.A. 71. The Board sent the letter to Mr. Carter and his former representative, the Disabled American Veterans, but not to his new counsel. J.A. 73. It is undisputed that Mr. Carter's counsel never received the letter within the 90-day period, which ended on November 4, 2010.
On December 13, 2010, the VA sent the new counsel a copy of Mr. Carter's claim file, nearly nine months after she requested it. J.A. 3-4. Although she had filed the request before the remand order issued, a copy of the 90-day letter had been added to Mr. Carter's claim file before it was copied and sent to her. She ...