PENDING CLAIMS DOCTRINE

Several of you have emailed me concerning the effective date of your claims. There seems to be a lot of misinformation about this. I received an interesting article put out by several “scholars” at VA, or perhaps quoted by VA, on the subject.

While the gentlemen do a bang up job of tracing the history of this through the ages from Congress’ enactment of the VJRA, the judicial rationale is constantly shifting. In most cases it is in favor of the vet-marginally. It see saws back and forth as you will read.

Here’s John Fussell and Johnathan Hagar’s synopsis of how we’ve been blessed. I disagree with many concepts of it. Do not mistake that sentence. The legal concepts are futile to object to. I can no more change that than hold back the tide as King Canute attempted. My argument is based more on future litigation. Since law evolves and is not static, new interpretations are constantly “discovered” concerning the existing law. Each new inspection of a conundrum elicits yet anew more conjecture, more law and more trees cut down to immortalize it on paper.

One thing this article never addressed is the concepts embodied in VAOPGCPREC 9-97 where a Vet submits a NOD with new and material evidence and the VA fails to issue a SSOC. This is clearly covered in numerous VA regulations yet no discussion is forthcoming. I can cite a few examples of BVA decisions as they are more frequent.

First look at 9-97  http://www4.va.gov/ogc/opinions/1997precedentopinions.asp

Consider any of the following:

http://www4.va.gov/vetapp95/files5/9520118.txt

http://www4.va.gov/vetapp98/files3/9826124.txt

http://www4.va.gov/vetapp99/files3/9927507.txt

http://www4.va.gov/vetapp99/files3/9923709.txt

http://www4.va.gov/vetapp99/files3/9926971.txt

http://www4.va.gov/vetapp99/files3/9923350.txt

http://www4.va.gov/vetapp07/files2/0715392.txt

Some of these contingencies are not considered in the article.

Now consider King v. Shinseki (2010) and how it applies to this discussion.

 Section 3.156(b) is intended to be a veteran-friendly provision that allows for the assignment of an effective date of the date of the original claim when certain requirements are met.  72 Fed. Reg. 28,778 (May22, 2007) (explaining that §§ 3.156(b) and 3.400 “provide a claimant-friendly effective date rule for awards based on evidence received while a claim is on appeal or before the appeal period expires”).  To accept the Secretary’s position that the Board correctly determined that the September 1996 RO decision was final would be to allow VA to ignore  this claimant-friendly provision.  It would also create the possibility that VA, by not considering evidence submitted during the one-year appeal period following the RO decision and simply waiting for the RO decision to become final, deprived the appellant of the earlier effective date associated with his December 1995 claim.  This would be antithetical to the nonadversarial, claimant-friendly nature of VA proceedings. See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (noting “VA’s uniquely pro-claimant benefits system”);    Young v. Shinseki (2009) Muehl v. West, 13 Vet.App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after RO decision rendered RO decision nonfinal); 38 C.F.R. § 3.400(q) (2009) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”).

 And:

Thus, if such new and material evidence had been submitted and had not been acted upon, Mr. King’s claim could still be pending until a decision had been made on that evidence.  See 38 C.F.R. § 3.160(c) (2009) (“pending claim” is “[a]n application, formal or informal, which has not been finally adjudicated”); see also Ingram v. Nicholson, 21 Vet.App. 232, 240 (2007) (“[A] claim remains pending–even for years–if the Secretary fails to act on a claim before him.”)

King v. Shinseki (2010)

From King, it can be deduced that any new evidence submitted during an appeal, sans an inspection of same, operates to suspend the adjudication until it can be determined to be admissible under 3.156(a). There is no requirement at the time that it be material. Mere failure to obey §19.31 and §19.37(a)[ 38 USC §7105(d)] and issue an SSOC makes it an incomplete adjudication or a “pending claim “as envisioned in §3.160(c). When it is finally examined de novo, an appropriate disposition can ensue determining the material value and whether it relates to an unestablished fact necessary to substantiate the claim.

The article does not discuss estoppel. Here, for your edification, is a brief overview of the legal concept.

Equitable estoppel prevents one party from taking a different position at trial than they did at an earlier time if the other party would be harmed by the change. Generally, the elements that need to be proved are:

1. There must be a representation or concealment of material facts.

2. These facts must be known at the time of the representation to the party being estopped.

3. The party claiming the benefit of the estoppel must not know the truth concerning these facts at the time of the representation.

4. The representation must be made with the intention or the expectation that it will be acted upon.

5. The representation must be relied upon and acted upon.

6. The party acting upon the representation must do so to his or her detriment.

Estoppel by laches precludes a party from bringing an action when the party knowingly failed to claim or enforce a legal right at the proper time. This doctrine is closely related to the concept of statutes of limitations, except that statutes of limitations set specific time limits for legal actions, whereas under Laches, generally there is no prescribed time that courts consider “proper.” A defendant seeking the protection of laches must demonstrate that the plaintiff’s inaction, Misrepresentation, or silence prejudiced the defendant or induced the defendant to change positions for the worse.

Now let’s look at equitable tolling:

 

Equitable Tolling

Definition – Noun
: a doctrine or principle of tort law: a statute of limitations will not bar a claim if despite use of due diligence the plaintiff did not or could not discover the injury until after the expiration of the limitations period

This is where most of us will employ the GCPREC 9-97 defense. If we discover our claim is not final due to inaction (or the wrong action) of VA, the claim remains pending and equitable tolling of the finality is for application.

While I am not a law dog, these precepts are useful to grasp the intricacies of this. A claim is not over until the fat lady sings or the Fed. Circus says it is. This is the last word currently on it from the Supremes (Irwin v. Dept. of Vet. Affairs 1990)

In Bailey, the Federal Circuit characterized Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 (1990), as having held that “equitable tolling is available in suits between private litigants . . .’where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.'”  Bailey, 160 F.3d at 1364 (quoting Irwin, supra). The Federal Circuit held in Bailey that equitable tolling in the paternalistic veterans’ benefits context does not require misconduct (such as trickery, id. at 1365); however, Bailey does require the appellant to have been misled or induced by VA conduct “into allowing the filing deadline to pass”.  Id. at 1364 (quoting Irwin, supra); see also Leonard v. West, 12 Vet.App. 554, 557 (1999) . There must be cause and effect; that is, the appellant must have relied to his detriment on something that VA did (or should have but did not do).  See Bailey, 160 F.3d at 1365 (noting that veteran had accepted and relied on VA advice and was misled by that advice “into allowing filing deadline to pass”).

Chastain v. West (2000)