United States Court of Appeals
for the Federal Circuit
__________________________
RICHARD D. BOND,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7096
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-89, Judge William P.
Greene, Jr.
___________________________
Decided: October 7, 2011
___________________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
LAUREN A. WEEMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. On the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, TODD M.
HUGHES, Deputy Director. Of counsel on the brief were
DAVID J. BARRANS, Deputy Assistant General Counsel,
BOND v. DVA 2
and CHRISTA A. SHRIBER, Attorney, United States De-
partment of Veterans Affairs, of Washington, DC,
sel, United States Department of Veterans Affairs, of
Washington, DC, and CHRISTA A. SHRIBER, Attorney.
__________________________
Before DYK, MOORE, and O’MALLEY, Circuit Judges.
O’MALLEY, Circuit Judge.
Richard D. Bond appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”), affirming the Board of Veterans’ Appeals’
(“Board”) denial of entitlement to an earlier effective date
for a rating of total disability based on individual unem-
ployability (“TDIU”). Bond v. Shinseki, No. 08-0089, 2010
U.S. App. Vet. Claims LEXIS 247 (Ct. Vet. App. Feb. 26,
2010) ("2010 Decision"). Because the Veterans Court’s
decision was based on an erroneous interpretation of 38
C.F.R. § 3.156(b), we vacate and remand.
BACKGROUND
Mr. Bond served in the United States Marine Corps
from December 1965 to November 1968. On October 8,
1996, he filed a claim for compensation for post-traumatic
stress disorder (“PTSD”). The Department of Veterans
Affairs (“VA”) Regional Office (“RO”) granted Mr. Bond’s
claim on May 6, 1997, and assigned a disability rating of
30%, effective October 8, 1996.
In February 1998, Mr. Bond submitted to the RO a
document stating: “I respectfully request an increase in
percentage rating for my service connected [PTSD] pres-
ently rated at 30% service connected.” Joint Appendix
(“JA”) 29. He attached to this document a medical record
signed by Staff Psychologist F. Garner, Ph. D., which
references a January 14, 1998 psychological examination
3 BOND v. DVA
and discusses the history of Mr. Bond’s psychological
condition. In a July 8, 1998 decision, the RO treated the
February 1998 submission as a new claim for an in-
creased PTSD disability rating. The RO denied Mr.
Bond’s request for an increased rating on grounds that he
had not submitted “medical evidence that [his] PTSD
condition ha[d] worsened.” JA32-35.
On July 7, 1999, Mr. Bond submitted a statement to
the RO requesting reconsideration of the July 8, 1998
rating decision, along with an additional psychological
examination report. On July 15, 1999, the RO, again,
continued the 30% disability rating for PTSD, noting that
the report attached to Mr. Bond’s July 7, 1999 submission
“fail[ed] to show the veteran has symptoms and manifes-
tations of” PTSD. JA40. The RO, subsequently, con-
strued Mr. Bond’s July 7, 1999 request for reconsideration
as a notice of disagreement (“NOD”) with the RO’s July
1998 decision and issued a statement of the case in De-
cember 1999. Mr. Bond perfected his appeal to the Board
in February 2000.
During the pendency of Mr. Bond’s July 1999 NOD,
he filed an additional request for an increased PTSD
rating. The RO denied this request in August 1999,
finding that 1998 and 1999 VA hospitalization records
Mr. Bond submitted did not warrant a higher rating. On
September 8, 1999, Mr. Bond filed another request for an
increased rating, alleging that his PTSD “prevent[ed]
[him] from performance of gainful employment.” JA48.
The RO denied this request in an October 14, 1999 deci-
sion.
Following this denial, Mr. Bond submitted: (1) a for-
mal application for TDIU due to PTSD; (2) documentation
associated with VA Examinations conducted between
February 22, 2000 and March 29, 2000; and (3) an affida-
BOND v. DVA 4
vit regarding his work history. On December 29, 2000,
the RO increased Mr. Bond’s schedular PTSD disability
rating to 70% and awarded a TDIU rating, both effective
July 7, 1999. Mr. Bond filed a NOD as to the effective
dates for both disability awards on December 21, 2001. In
January 2003, the RO issued a statement of the case on
the issue of Mr. Bond’s entitlement to earlier effective
dates, and Mr. Bond perfected the matter for Board
review.
The Board addressed both of Mr. Bond’s appeals in a
September 23, 2004 decision. First, the Board considered
Mr. Bond’s argument that, because his February 11, 1998
submission was received prior to the expiration of the
appeal period for the May 1997 rating decision, the effec-
tive date for his 70% rating should be October 8, 1996, the
date of his initial claim for PTSD. 1 Specifically, Mr. Bond
argued that his February 1998 submission was actually
new and material evidence relating to the earlier, May
1997, rating decision and should have been assessed as
such by the RO. The Board rejected this argument,
concluding that the RO properly characterized the Febru-
ary 1998 submission as a new claim for an increased
PTSD rating. The Board found that Mr. Bond had al-
lowed the May 1997 decision to become final by failing to
file an appeal from that decision within one year and that
1 The effective date for a claim for increased
rating is the “date of receipt of the claim or the date
entitlement arose, whichever is later.” 38 C.F.R. § 3.400.
A claimant, however, may obtain an earlier effective date
for an issued rating decision if the claimant submits new
and material evidence within the appeal period of that
rating decision or before an appellate decision of that
rating decision. See 38 C.F.R. § 3.400(q)(1). It was this
exception to Section 3.400 upon which Mr. Bond relied
before the Board.
5 BOND v. DVA
the February 1998 submission did not extend the time for
that appeal.
The Board then turned to the February 1998 claim
and the question of whether Mr. Bond was entitled to an
earlier effective date for the 70% PTSD disability rating
he received in connection with that claim, finding that he
was. After examining the medical records submitted by
Mr. Bond both before and in connection with his February
1998 submission, the Board determined that those medi-
cal records showed symptoms substantially predating
January 1997. Based on this conclusion, the Board noted
that those records would be treated as an informal claim,
normally allowing for an effective date of up to one year
before February 1998. Richard D. Bond, No. 03-03 844,
slip op. 15 (Bd. Vet. App. Sept. 23, 2004) (citing 38 C.F.R.
§ 3.157 (2003)). 2 Based on the Board’s earlier conclusions
that the May 1997 rating decision had become final and
that the February 1998 claim was an entirely new claim,
however, it concluded that May 7, 1997 – the day after the
earlier, final, 30% rating decision – was the earliest
effective date it could award.
Consequently, the Board granted an effective date of
May 7, 1997 for Mr. Bond’s 70% disability rating “based
on the medical evidence that predated the veteran’s
February 1998 written claim.” Id. at 16. The Board
denied Mr. Bond’s remaining claims, finding that: (1) he
was not entitled to an earlier effective date for TDIU; and
(2) his symptoms did not warrant a disability rating
higher than 70%.
2 Section 3.157 allows the receipt of certain re-
cords to serve as an informal claim, and it allows the
payment of retroactive benefits for a period of one year
prior to the date of receipt of those records.
BOND v. DVA 6
Mr. Bond appealed to the Veterans Court, arguing
that the Board: (1) erred in finding that the May 6, 1997
decision awarding a 30% rating for PTSD had become
final; and (2) erroneously determined the date of his
initial claim for TDIU. With respect to the finality issue,
Mr. Bond argued that, when assigning the effective date
for his 70% rating, the Board failed to consider whether
he had submitted new and material evidence prior to the
expiration of the appeal period for the May 6, 1997 RO
decision. According to Mr. Bond, the May 6, 1997 decision
could not have become final because the Board never
considered whether his February 1998 submission con-
tained new and material evidence relating to his October
1996 claim. See Muehl v. West, 13 Vet. App. 159, 161-62
(1999) (holding that, when the VA fails to consider new
and material evidence submitted within the one-year
appeal period pursuant to § 3.156(b), and that evidence
establishes entitlement to the benefit sought, the underly-
ing RO decision does not become final).
In a March 30, 2007 decision, the Veterans Court af-
firmed the Board’s September 2004 decision as it applied
to Mr. Bond’s schedular rating, but vacated the Board’s
determination that Mr. Bond was not entitled to an
effective date earlier than July 7, 1999 for his TDIU
rating. See Bond v. Nicholson, No. 05-0029, 2007 U.S.
App. Vet. Claims LEXIS 539 (Ct. Vet. App. Mar. 30, 2007)
("2007 Decision"). In doing so, the court rejected Mr.
Bond’s contention that "the Board failed to consider
whether he submitted new and material evidence prior to
the expiration of the appeal period of the May 6, 1997 RO
decision," as required by 38 C.F.R. § 3.156(b). Id., at *8.
Specifically, the court held that, because "the RO treated
that submission as an increased rating claim," it did not
fail to consider whether it constituted new and material
evidence for purposes of § 3.156(b). Id. With respect to
7 BOND v. DVA
the TDIU issue, the court held that the Board clearly
erred by failing to consider whether Mr. Bond’s February
1998 submission – which served as the basis for the
Board’s decision to assign an earlier effect date for Mr.
Bond’s 70% disability rating – also may have reasonably
raised an informal claim for a rating of TDIU. The Veter-
ans Court, thus, remanded the case with instructions to
“assign an effective date for Mr. Bond’s PTSD after con-
sidering,” among other things, “his February 1998 in-
creased rating claim.” Id., at *12.
On remand, the Board found that Mr. Bond’s Febru-
ary 1998 submission met the requirements for an infor-
mal claim for TDIU and assigned an effective date of
February 11, 1998 for that claim. Although Mr. Bond
argued for an earlier effective date, the Board declined to
assign one because, in its view, there was “no communica-
tion from the veteran prior to February 11, 1998 which
[could] be construed as an informal claim of entitlement
to TDIU.” Richard D. Bond, No. 03-03 844, slip op. 8 (Bd.
Vet. App. Sept. 14, 2007).
Mr. Bond appealed this decision to the Veterans
Court, arguing that “his February 1998 submission con-
stituted new and material evidence [filed] within the one-
year appeal period of the May 1997 RO decision” and that
he was, thus, entitled to an earlier effective date for his
TDIU rating. See 2010 Decision, 2010 U.S. App. Vet.
Claims LEXIS 247, at *3. The court rejected this argu-
ment based on res judicata. Specifically, the court held
that its March 2007 decision “expressly ruled on” the
issue of whether “the February 1998 submission consti-
tuted new and material evidence submitted during the
one-year appeal period” and concluded that it did not. Id.,
at *3-4. Consequently, the court affirmed the Board’s
assignment of February 11, 1998 as the effective date for
Mr. Bond’s TDIU rating. This appeal followed.
BOND v. DVA 8
DISCUSSION
Our jurisdiction to review the decisions of the Veter-
ans Court is limited by statute. Forshey v. Principi, 284
F.3d 1335, 1338 (Fed. Cir. 2002). Section 7292(a) of Title
38 provides that this court may review the validity of the
Veterans Court's decision on “a rule of law or of any
statute or regulation” or “any interpretation thereof” that
the Veterans Court relied on in making its decision.
Under 38 U.S.C. § 7292(d)(2), however, we may not
review: (1) “a challenge to a factual determination” or (2)
“a challenge to a law or regulation as applied to the facts
of a particular case,” unless the challenge presents a
constitutional issue.
On appeal, Mr. Bond challenges the Veterans Court’s
interpretation of 38 C.F.R. § 3.156(b) – the VA regulation
pertaining to new and material evidence submitted in
connection with a pending claim. Pursuant to § 3.156(b),
“[n]ew and material evidence received prior to the expira-
tion of the” period for appealing a decision “will be consid-
ered as having been filed in connection with the claim
which was pending at the beginning of the appeal period.”
38 C.F.R. § 3.156(b). Mr. Bond argues that, properly
interpreted, this regulation requires the VA to review any
evidence submitted during the appeal period and make a
determination as to whether it constitutes new and mate-
rial evidence relating to an existing claim before deciding
whether the submission may also constitute a new claim.
According to Mr. Bond, because the VA received his
February 1998 submission before the deadline for appeal-
ing the RO’s May 6, 1997 rating decision, the VA was
required to determine whether that submission consti-
tuted new and material evidence that could support a
9 BOND v. DVA
different result as to his October 8, 1996 claim, even if the
same evidence might also support a new claim. Mr. Bond
argues that the Veterans Court erroneously interpreted §
3.156(b) by holding that the VA satisfied the regulation’s
requirements even though it never made a determination
as to whether the February 1998 submission contained
new and material evidence pertaining to his October 1996
claim.
The government first responds that this case falls
outside of our jurisdiction because, in its view, “what Mr.
Bond really challenges here is the Veterans Court’s fac-
tual determination that he did not submit new and mate-
rial evidence pertaining to his initial October 1996 claim
within the one-year appeal period or the Veterans Court’s
application of § 3.156(b) to the facts of this case.” 3 Appel-
lee’s Br. 10. We disagree. Mr. Bond’s argument is that
the Veterans Court misinterpreted § 3.156(b) when it
endorsed the RO’s failure to consider whether his submis-
sion contained new and material evidence because, in his
view, the regulation requires such consideration.
Whether § 3.156(b) requires the VA to determine if a
submission filed during the appeal period constitutes new
and material evidence relating to a pending claim is a
legal question divorced from the facts of this case. We,
3 Specifically, the government contends that the
Veterans Court made this alleged factual determination
or application of law to facts in its March 30, 2007 deci-
sion. See Appellee’s Br. 10 (citing 2007 Decision, 2007
U.S. App. Vet. Claims LEXIS 539). As the government
acknowledges, the Veterans Court’s February 2010 deci-
sion could not have involved a factual determination or
application of law to facts because it rejected Mr. Bond’s §
3.156(b) argument on the legal ground that, under the
doctrine of res judicata, Mr. Bond was barred form reliti-
gating the issue. See 2010 Decision, 2010 U.S. App. Vet.
Claims LEXIS 247, at *3-4.
BOND v. DVA 10
accordingly, have jurisdiction over Mr. Bond’s appeal. See
38 U.S.C. § 7292.
With respect to the merits, the government argues
that, because the “plain language” of the cover letter
attached to Mr. Bond's February 1998 submission stated
that he was "request[ing] an increase in percentage rating
for [his] service connected [PTSD]," the RO and Veterans
Court properly treated the submission as a new claim,
rather than new and material evidence relating to his
October 1996 claim. Appellee’s Br. 23. According to the
government, where a claimant requests an increased
rating in correspondence attached to newly submitted
evidence, the RO need not consider whether the underly-
ing submission constitutes new and material evidence
relating to an existing claim, regardless of the nature of
the evidence submitted and its relationship to any pend-
ing claims. We reject the notion that such a statement
made in connection with the submission of evidence
discharges the RO of its duty, under § 3.156(b), to actually
evaluate the evidence submitted and determine whether
it is new and material to an old claim.
Section 3.156(b) provides that “[n]ew and material
evidence received prior to the expiration of the” period for
appealing a decision “will be considered as having been
filed in connection with the [pending] claim." 38 C.F.R. §
3.156(b) (emphases added). Thus, the question for pur-
poses of the regulation is whether the evidence submitted
is, in fact, new and material—not whether the claimant
characterizes it as such. Because § 3.156(b) requires that
the VA treat new and material evidence as if it was filed
in connection with the pending claim, the VA must assess
any evidence submitted during the relevant period and
11 BOND v. DVA
make a determination as to whether it constitutes new
and material evidence relating to the old claim. 4
This obligation persists even where, as here, the RO
has concluded that the submission in question also sup-
ports a new claim for an increased rating, for neither law
– nor logic – dictates that evidence supporting a new
claim cannot also constitute new and material evidence
relating to a pending claim. The Veterans Court, thus,
4 Although not raised in its brief, the govern-
ment suggested, at oral argument, that Voracek v. Nichol-
son, 421 F.3d 1299 (Fed. Cir. 2005) compels a different
result. The government’s reliance on Voracek is mis-
placed. There, the veteran’s only submission during the
relevant period was a Statement in Support of Claim
(“SSC”), the extent of which was the following paragraph:
I wish to re-open my claim for PTSD as I feel
this condition has worsened. I go to the Port-
land [Veterans] Center for counseling on a
weekly basis as to the problems I am having
because of the PTSD. Please contact them
for my counseling records to verify this.
Id. at 1301. It was undisputed that “Voracek did not
submit any evidence accompanying his SSC.” Id. Our
inquiry was, thus, limited to whether his SSC “by itself or
when considered with previous evidence of record” was
relevant to an “unestablished fact necessary to substanti-
ate” Voracek’s original claim for PTSD.
Significantly, the issue before us today – whether
the VA must make a determination as to whether evi-
dence submitted during the appeal period constitutes new
and material evidence for purposes of § 3.156(b) – was not
before us in Voracek because Mr. Voracek did not allege
that the VA failed to make such a determination. Nor did
Voracek involve the submission of medical evidence
relevant to the veteran’s condition during the pendency of
his original claim. We, accordingly, reject the govern-
ment’s contention that Voracek somehow controls the
outcome of this case.
BOND v. DVA 12
erred when it rejected Mr. Bond's argument that the
Board failed to consider whether he submitted new and
material evidence on the basis that “the RO treated [Mr.
Bond's February 1998] submission as an increased rating
claim.” 2007 Decision, 2007 U.S. App. Vet. Claims LEXIS
539, at *8. That the RO treated the February 1998 sub-
mission as a new claim does not foreclose the possibility
that it may have also contained new and material evi-
dence pertaining to his October 1996 claim and, accord-
ingly, could not have relieved the VA of its obligations
under § 3.156(b).
When pressed on this issue at oral argument, the gov-
ernment appeared to concede that the VA must make two
determinations with respect to submissions received
during the period for appealing a decision: (1) whether the
submission contains new and material evidence relating
to a pending claim; and (2) whether it should be treated
as a new claim for an increased rating. See Oral Argu-
ment at 14:00, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
10-7096.mp3 (stating that the government “would not
argue with” this proposition and confirming that the
Veterans Court's decision in Young v. Shinseki, 22 Vet.
App. 461 (Ct. Vet. App. 2009) indicates “that . . . the
Board needs to go through [this] type of analysis”). The
government, nevertheless, maintains that, although
nothing in the record indicates that the RO or Board
made a determination as to whether the February 1998
submission contained new and material evidence, this
analysis “implicitly did happen” and that we must defer to
that implicit finding. Id. at 23:02.
Absent any indication in the record that this analysis
occurred, we decline to presume that the VA considered,
but rejected, the possibility that Mr. Bond’s February
1998 submission contained new and material evidence
13 BOND v. DVA
relating to his October 1996 claim. We are particularly
reluctant to do so in light of the Board’s statutory obliga-
tion to provide “a written statement of [its] findings and
conclusions, and the reasons or bases for those findings
and conclusions, on all material issues of fact and law
presented on the record.” See 38 USC 7104(d)(1); Young,
22 Vet. App. At 466 (“[T]he Board must include in its
decision a written statement of the reasons or bases for its
findings and conclusions, adequate to enable an appellant
to understand the precise basis for the Board’s decision as
well as to facilitate review. . . .”). 5 Such a presumption
would effectively insulate the VA’s errors from review
whenever it fails to fulfill an obligation, but leaves no firm
trace of its dereliction in the record. We are particularly
reluctant to assume an unstated finding, moreover,
where, as here, the additional materials submitted would
seem to compel the opposite conclusion. Consequently,
this matter requires remand for a determination as to
whether Mr. Bond’s February 1998 submission contains
new and material evidence relating to his October 1996
claim. See Young, 22 Vet. App. at 468 (holding that the
“Board’s failure to discuss § 3.156(b), which on [the]
5 Reference to the presumption of regularity
does not alter our conclusion. Where neither the RO nor
the Board has addressed a critical and determinative
issue and the Board findings refer exclusively to an alter-
nate analysis, resort to the presumption of regularity
cannot create a record which is simply not there. Com-
pare Jennings v. Mansfield, 509 F. 3d 1362, 1367 (Fed.
Cir. 2007) (In discussing interplay between the presump-
tion of regularity and the Board’s obligation to detail the
bases for its ruling, this Court noted that “where Board
has explained its decision in detail and made clear the
reasons and bases for its decision, and in substance has
articulated the correct burden of proof. . .” the Board need
not use magic words and the Veterans Court can assume
the Board used the correct standard.)
BOND v. DVA 14
record” before the Veterans Court was “a potentially
applicable regulatory provision, require[d] remand”).
CONCLUSION
For these reasons, we find that the Veterans Court
erred in holding that, because the RO treated Mr. Bond's
February 1998 submission as a claim for an increased
rating, the VA satisfied its obligations under 38 C.F.R. §
3.156(b). To comply with the directive of § 3.156(b) that
new and material evidence be treated as having been filed
in connection with the pending claim, the VA must evalu-
ate submissions received during the relevant period and
determine whether they contain new evidence relevant to
a pending claim, whether or not the relevant submission
might otherwise support a new claim. Because the VA
failed to make such a determination with respect to Mr.
Bond's February 1998 submission, we vacate and remand
for proceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
Appellant shall have his costs.