Single Judge Application, Locklear v. Shinseki, No. 09-2675, Implicit Denial

Excerpt from decision below:
"Next, with respect to the Secretary's implicit denial argument, a letter
from VA informing Mr. Strother that his Notice of Disagreement was untimely is not an adjudication and, therefore, cannot operate as an implicit denial. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009)(explaining that a claim for VA benefits, whether formal or informal, remains pending until it is finally adjudicated); Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) ("[A] reasonably raised claim remains pending until there is either a recognition of the substance
of the claim in a [regional office] decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability."). Moreover, as noted above, VA mischaracterized Mr. Strother's untimely Notice of Disagreement as a request to reopen, instead of
as a claim for an increased disability rating, and, therefore, he was not
put on notice that the January 1996 letter was a denial of his claim for an increased disability rating.
Adams, 568 F.3d at 965("[T]he implicit denial rule is, at bottom, a notice provision.");Locklear v. Shinseki, __ Vet.App. __, __, No. 09-2675, slip. op. at 6, 2011 WL 474693 at *4 (Feb. 11, 2011) (stating that a claim is
10

implicitly denied "when a reasonable person would understand from a decision that his request for benefits not explicitly addressed in the decision nevertheless implicitly was adjudicated and denied by that decision"). Accordingly, the Court concludes that the Secretary's implicit denial and abandonment arguments are without merit."
=============================================
----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2289
WILLIE J. STROTHER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Willie J. Strother appeals through counsel an April 17, 2009,
Board of
Veterans' Appeals (Board) decision denying entitlement to an earlier
effective date for a total
disability rating based on individual unemployability. Record (R.) at 3-16.
The Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the
April 2009 Board decision.
Because the Board's determination that neither Mr. Strother nor the record
raised the issue of
entitlement to a total disabilityrating based on individual
unemployability between September 1994
and April 2002 is not clearly erroneous and is supported by an adequate
statement of reasons or
bases, the Court will affirm the April 17, 2009, Board decision.
I. FACTS
Mr. Strother served on active duty in the U.S. Army from February 1981 to
February 1984
and in the U.S. Marine Corps from January 1986 to April 1989.


As of November 1992, Mr. Strother had been awarded a 30% disability
rating for Crohn's
disease,1
a 20% disability rating for status post-resection of his bladder, and a
noncompensable
disability rating for anemia.
In May 1993, Mr. Strother filed informal claims for increased disability
ratings for his
service-connected disabilities and indicated that he could not "get a job
or do anywork at all at [that]
time." R. at 487. A month later, he filed an application for increased
compensation based on
unemployability, asserting that his Crohn's disease prevented him from
securing or following
substantiallygainfulemployment. InMarch1994,theregionalofficedeniedhis
claims forincreased
disability ratings for his service-connected disabilities and denied
entitlement to a total disability
rating based on individual unemployability.
Later that month, Mr. Strother attended a VA medical examination. The VA
examiner's
report of Mr. Strother's medical historystated, in pertinent part, that, "[
a]fter discharge [in 1989] and
up to the present time, [Mr. Strother] has tried to work, but due to
diarrhea and abscesses of his
rectum and anus, [he] has been unable to keep a job and has become
unemployable." R. at 436.
Afterconductingageneralphysicalexamination, theexaminerdiagnosedMr.
Strotherwith "Crohn's
disease, postoperative" and noted that Mr. Strother had "large abscesses
and carbuncles[2
]
surrounding the rectum extending to the perineum" that caused "frequent
bleeding from his rectum"
that was "more active on any type of movement." R. at 438. In April 1994,
another VA examiner
confirmed this diagnosis. In September 1994, the regional office again
denied Mr. Strother's claims
for increased disabilityratings for his service-connected disabilities and
denied entitlement to a total
disability rating based on individual unemployability.
In December 1995, more than one year after the September 1994 regional
office decision,
Mr. Strother filed a Notice of Disagreement "with [the] decision to deny[
the] request for an increase
in [the disability] rating for Crohn's disease." R. at 398. Mr. Strother
did not make mention of any
Crohn's disease is "one of the principal forms of inflammatory bowel
disease, a chronic granulomatous disease
of the gastrointestinal tract of unknown etiology. . . . Characteristics
include scarring and thickening of the bowel wall
that frequently leads to intestinal obstruction, abscesses, and fistula
formation." DORLAND'S ILLUSTRATED MEDICAL
DICTIONARY 539 (31st ed. 2007) [hereinafter DORLAND'S].
Carbuncles are "a necrotizing infection of skin and subcutaneous tissue
composed of a cluster of boils . . . with
multiple formed or incipient drainage sinuses." DORLAND'S at 294.
2
1
2


of his other service-connected disabilities or the regional office's
denial of entitlement to a total
disabilityratingbased on individual unemployability. In January1996, VA
sent Mr. Strother a letter
explaining that his Notice of Disagreement was untimely and took no
further action with regard to
this submission.
In the meantime, in April 1995, Mr. Strother informed VA that he was "re[]
applying for
vocational rehabilitation." R. at 402. Specifically, he stated that he was "
now well enough to resume
[his] training" and submitted "medical proof that [he was]
medicallycapable to resume [] vocational
rehabilitation," id., including a letter from a VA physician stating that
he was "approved to restart
employment without restriction," R. at 403, and a pay stub indicating that
he had been employed
part-time since January 1995, R. at 404.
Over the next 7 years, Mr. Strother continued to receive treatment for his
service-connected
disabilities, including a 3-day hospitalization in July 2001. In June 2002,
Mr. Strother filed a claim
for an increased disability rating for Crohn's disease. In July 2002, he
was awarded a 60% disability
rating for Crohn's disease effective April 4, 2002, which increased his
combined disability rating to
70%, also effective April 4, 2002.
In September 2002, Mr. Strother submitted an application for increased
compensation based
on unemployability, asserting that he ceased working full-time in November
2001. In December
2002, a VA medical examiner opined that "at this time, [Mr. Strother]'s
Crohn's disease is active and
would interfere with his ability to be employed." R. at 316. Based on this
medical opinion, the
regional office awarded Mr. Strother a total disability rating based on
individual unemployability
effective April 4, 2002, the date that he was entitled to a 60% disability
rating for Crohn's disease.
Mr. Strother submitted a timely Notice of Disagreement with this decision
and subsequently
perfected his appeal with regard to the effective date assigned for his
total disability rating based on
individual unemployability.
Afterfurtherdevelopment, including a July2008 remand from this Court
premised on a joint
motion for remand, the Board in April 2009 issued the decision currently
on appeal, which denied
entitlement to an earlier effective date for a total disability rating
based on individual
unemployability. Specifically, the Board stated that:
3


[T]he record does not show that the [Mr. Strother]'s service-connected
disabilities
had worsened or that he had become unemployable due to his service-
connected
disabilities on a factually ascertainable date prior to April 4, 2002. In
addition, the
Board finds that none of [Mr. Strother]'s communications following the
September
1994 rating decision that denied him a [total disability rating based on
individual
unemployability] and prior to either April 4, 2002[,] or July 2002
constituted an
informal or formal claim for a [total disability rating based on
individual
unemployability].
R. at 10. The Board also determined that, "even if [] the December 1995
notice of disagreement had
been adjudicated as an increased rating claim, there was no medical
evidence at that time that
showed that any of [Mr. Strother]'s service-connected disabilities had
worsened or that he was
unemployable due to those disabilities." R. at 11 (emphasis added).
II. ANALYSIS
A. Issues on Appeal
As an initial matter, the Court notes that Mr. Strother only appealed that
portion of the
December 2002 regional office decision that assigned an effective date of
April 4, 2002, for his total
disability rating based on individual unemployability. See R. at 176-77 (
VA Form 9 indicating that
Mr. Strother was "only appealing the[] issue" of the effective date
assigned for his total disability
rating based on individual unemployability), 277 (December 2003 Notice of
Disagreement stating
that "it is [Mr. Strother's] contention that the effective date of [his]
rating for unemployabilityshould
be [January 1, 2002]"). Therefore, the December 2002 regional office
decision is final with regard
to Mr. Strother's claim for benefits for Crohn's disease. Moreover, the
April 2009 Board decision
currently on appeal was the result of a July 2008 joint motion for remand,
granted by this Court, that
stated:
[T]he parties agree that the Board should review the evidence of record
prior to [Mr.
Strother]'s July 2002 claim and make a determination whether there was any
communication that could be construed as an informal claim for [a total
disability
rating based on individual unemployability]. The Board should also offer
further
analysis and an adequate explanation as to whether or not [his] claim for [
a total
disability rating based on individual unemployability] should have been
referred for
extraschedular consideration in light of all of the pertinent evidence of
record.
4


R. at 42. Based on these instructions, drafted and agreed to
byrepresented parties, the Board limited
its April 2009 decision to consideration of whether Mr. Strother was
entitled to an effective date
prior to April 4, 2002, for the award of a total disability rating based
on individual unemployability.
Accordingly, this is the only issue presently before the Court on appeal.
See U.S.C. § 7252(a);
Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) (holding that the
jurisdiction of this Court "is
premised on and defined bythe Board's decision concerning the
matterbeingappealed"). Therefore,
to the extent that any of Mr. Strother's arguments address entitlement to
an earlier effective date for
Crohn's disease, the Court lacks jurisdiction to address them. Id. However,
Mr. Strother is free to
submit those arguments to his local regional office in the form of a
motion for revision of a final
decision based on clear and unmistakable error. See Leonard v. Nicholson,
405 F.3d 1333, 1337
(Fed.Cir. 2005) ("[A]bsent a showingof [clear and unmistakable error, the
appellant]cannotreceive
disability payments for a time frame earlier than the application date of
his claim to reopen, even
with new evidence supporting an earlier disability date.").
B. Merits Adjudication
Mr. Strother argues that the Board committed error when it determined that
his untimely
December 1995 Notice of Disagreement did not constitute an informal claim
for an increased
disability rating, including entitlement to a total disability rating
based on individual
unemployability, which would entitle him to an earlier effective date for
the award of a total
disability rating based on individual unemployability.
Specifically, he contends that this
determination was based on a "debunked legal fiction that [a total
disability rating based on
individual unemployability] is a distinct and separate claim from a claim
for increased
compensation." Appellant's Brief (Br.) at 9. Mr. Strother also asserts
that the Board's finding that,
between December 1994 and April 2002, there was no evidence that his
Crohn's disease increased
in severityor renderedhim unemployableis clearlyerroneousbecauseit is "
factuallyinaccurate" and
because "the Board fail[ed] to appreciate that [he] is entitled to VA's
assistance to the retrospective
development of his increased rating claim." Id. at 11-12. In the
alternative, Mr. Strother argues that
the Board's decision is not supported by an adequate statement of reasons
or bases. The Secretary
disputes these contentions and additionally argues that "any increased
rating claim initiated by [Mr.
Strother]'s untimely December 1995 [Notice of Disagreement] was
adjudicated, either explicitly or
5


impliedly, by the [regional office]'s January 1996 response, or . . . was
abandoned because [he] did
not respond." Secretary's Br. at 14.
With respect to his first argument, Mr. Strother is correct that there is
no such thing as a
freestanding claim for a total disability rating based on individual
unemployability. As the Court
explained in Rice v. Shinseki, "a request for [a total disability rating
based on individual
unemployability] . . . is not a separate claim for benefits, but rather
involves an attempt to obtain an
appropriate rating for a disability or disabilities, either as part of the
initial adjudication of a claim
or . . . as part of a claim for increased compensation." 22 Vet.App. 447,
453-54 (2009). Therefore,
for the purposeof determining whetherMr. Strother is entitled to an
earlier effective date for his total
disability rating based on individual unemployability, the Court will
assume without deciding that
the untimely Notice of Disagreement that he filed in December 1995 was an
informal claim for an
increased disability rating for Crohn's disease, an issue not on appeal at
this time.3
Even assuming that the untimely Notice of Disagreement constituted an
informal claim for
an increased disability rating for Crohn's disease, the informal claim
would not necessarily raise the
issue of entitlement to a total disability rating based on individual
unemployability. As the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit) explained in
Roberson v. Principi, VA
must only consider entitlement to a total disability rating based on
individual unemployability
"[o]nce a veteran submits evidence of a medical disability and makes a
claim for the highest rating
possible, and additionally submits evidence of unemployability." 251 F.3d
1378, 1384 (Fed. Cir.
2001) (emphasis added). Contrary to Mr. Strother's contentions, the
requirement that a veteran
submit evidence of unemployability to raise the issue of entitlement to a
total disability rating based
onindividual unemployabilityhassubsequentlybeenconfirmedbythe Federal
Circuit. See Jackson
Consistent with the discussion in Part II.A, above, the Board made no
explicit finding as to whether the
untimely Notice of Disagreement filed by Mr. Strother in December 1995
constituted an informal claim for an increased
disability rating for Crohn's disease. The Court notes that the untimely
Notice of Disagreement appears, on its face, to
satisfy the requirements for an informal claim for an increased disability
rating for Crohn's disease because Mr. Strother
had an intent to apply for an increased disability rating that he
explicitly identified in a communication to VA in writing.
See R. at 398; see also Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009) (
explaining that the essential requirements for
a claim, whether formal or informal, are (1) an intent to apply for
benefits, (2) an identification of the benefit sought, and
(3) a communication in writing); 38 C.F.R. § 3.155(c) ("When a claim has
been filed which meets the requirements of
[a claim for disability compensation or death benefits], an informal
request for increase or reopening will be accepted
as a claim.").
3
6


v. Shinseki, 587 F.3d 1106, 1109 (Fed. Cir. 2009) ("To [implicitly] raise [
the issue of entitlement to
a total disability rating based on individual unemployability], a veteran
must make a claim for the
highest rating possible, submit evidence of medical disability, and submit
evidence of
unemployability."); Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (
stating that the issue of
entitlement to a total disability rating based on individual
unemployability "is implicitly raised
whenever a pro se veteran, who presents cogent evidence of unemployability,
seeks to obtain a
higher disability rating"). Although Mr. Strother attempts to distinguish
his appeal from Jackson on
the basis that the Federal Circuit made the statement above in the context
of a dispute over attorney's
fees, this is a distinction without a difference in the instant case.
Accordingly, to raise the issue of
entitlement to a total disability rating based on individual
unemployability, a veteran must (1) make
a claim for the highest disability rating possible, (2) submit evidence of
medical disability, and
(3) submit evidence of unemployability. Jackson, 587 F.3d at 1109; Comer,
552 F.3d at 1367;
Roberson, 251 F.3d at 1384.
The parties do not dispute that the first two elements are satisfied
because (1) a claimant is
presumed to be seeking the highest disability rating possible when the
claimant files a claim for an
increased disability rating, AB v. Brown, 6 Vet.App. 35, 38 (1993), and (2)
there was evidence of
record at that time that Mr. Strother had a current diagnosis of Crohn's
disease. Therefore, the
determination of whetherMr. Strother raised the issue of entitlement to a
total disabilityratingbased
onindividual
unemployabilitybyfilinganuntimelyNoticeofDisagreementinDecember1995turns
on whether he submitted evidence of unemployability.
To this end, the Court notes that Mr. Strother did not submit any evidence
along with his
untimelyNotice of Disagreement. In addition, anyevidence of
unemployability in the record before
the September 1994 regional office decision was considered and evaluated
by the regional office in
September 1994 and found insufficient to support the award of a total
disability rating based on
individual unemployability. The only evidence of record between the
September 1994 regional
office decision and the December 1995 untimely Notice of Disagreement is
an April 1995 statement
from Mr. Strother that he was "re[]applying for vocational rehabilitation"
because he was "now well
enough to resume [his] training" and that he had "medical proof that [he
was] medically capable to
resume [] vocational rehabilitation" (R. at 402); a letter from a VA
physician stating that Mr.
7


Strother was "approved to restart employment without restriction" (R. at
403); and a pay stub
indicating that he had been employed part-time since January 1995 (R. at
404). Mr. Strother
inexplicablycites these documents as evidence that he was unemployable in
December 1995 despite
the fact that they seem to indicate the contrary. In any event, the Board
reviewed these documents
and determined that they did not demonstrate that Mr. Strother was
unemployable at the time he
submitted his untimely Notice of Disagreement in December 1995, a finding
that the Court
concludes is not clearly erroneous. See 38 U.S.C. § 7261(a)(4); Owens v.
Brown, 7 Vet.App. 429,
433 (1995) (explaining that the Board's findings of fact are subject to
the "clearly erroneous"
standard of review). To the extent that Mr. Strother argues that a July
2001 hospitalization report
and other treatment records from July 2001 demonstrate that he was
unemployable at the time he
filed the untimely Notice of Disagreement, this evidence postdates that
filing by nearly six years.
Therefore, it cannot be the evidence of unemployability necessary to raise
the issue of entitlement
to a total disability rating based on individual unemployability in
December 1995.
Moreover, to the extent that Mr. Strother argues that the submission of
medical records from
July 2001 raised the issue of entitlement to a total disability rating
based on individual
unemployability in July2001, the Board reviewed these documents and
determined that theydid not
demonstrate unemployability. Mr. Strother does not present any argument as
to why this finding is
clearly erroneous and, therefore, the Court concludes that he has failed
to carry his burden of
demonstrating error in that regard. See Hilkert v. West, 12 Vet.App. 145,
151 (1999).
Based on the foregoing, the Court concludes that the Board's determination
that "no
communication prior to April 2002 or July 2002," including the untimely
December 1995 Notice of
Disagreement, raised the issue of entitlement to a total disability rating
based on individual
unemployability was not clearly erroneous.4
R. at 13.
Both parties argue that the Court should review the Board's determination
of whether an informal claim has
been filed under the "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law" standard of
review. 38 U.S.C. § 7261(a)(3)(A); Appellant's Br. at 8 (citing Westberry
v. West, 12 Vet.App. 510, 513 (1999));
Secretary's Br. at 5 (citing Criswell v. Nicholson, 20 Vet.App. 501, 504 (
2006)). The Court acknowledges that the cases
cited by the parties invoke this standard of review; however, the Court
has held that "[t]he determination of whether an
informal claim has been filed is a substantially factual determination
that the Court reviews under the 'clearly erroneous'
standard of review." Brokowski, 23 Vet.App. at 85. This holding is
consistent with precedential decisions issued by the
U.S. Court of Appeals for the Federal Circuit and previous holdings of
this Court. See Comer, 552 F.3d at 1372
("Whether a veteran has raised a particular claim is a factual
determination."); Moody v. Principi, 360 F.3d 1306, 1310
4
8


With respect to Mr. Strother's argument that a retrospective medical
examination is required
in this caseto
determinewhetherhebecameunemployablebetweenSeptember1994andApril2002,
the Court notes that Mr. Strother abandoned this argument in his reply
brief. See Appellant's Reply
Br. at 2 n.1 (conceding that the issue of whether Mr. Strother is entitled
to a retroactive medical
examination "is technically, not ripe; it would only be ripe upon remand,
where the Board would
need to address this issue in the first instance"). Moreover, in Chotta v.
Peake, the Court explained
thatentitlementto aretroactivemedicalexamination "isnot automatic,"but
rather"appliesonlyonce
the evidence has met the minimal threshold of indicating the existence of
a medical question."
22 Vet.App. 80, 85 (2008); see also Gobber v. Derwinski, 2 Vet.App. 470,
472 (1992) ("In short, the
'duty to assist' is not a license for a 'fishing expedition' to determine
if there might be some
unspecified information which could possibly support a claim."). In this
case, the Board reviewed
the evidence of record between September 1994 and April 2002, including
the evidence cited byMr.
Strother in his brief, and determined that it was insufficient to
demonstrate unemployability.
Because this determination is not clearly erroneous, the Court concludes
that Mr. Strother has not
carried his burden of demonstrating that he was entitled to a retroactive
medical examination for his
total disability rating based on individual unemployability. See Hilkert,
12 Vet.App. at 151.
Finally, Mr. Strother argues in the alternative that the Board's statement
of reasons or bases
for its decision is inadequate. The Court disagrees. Here, the Board
recited the relevant law and
regulations applicable to the issue on appeal, reviewed the evidence of
record between September
1994 and April 2002, and concluded that this evidence, even when viewed in
the light most
favorable to Mr. Strother, did not raise the issue of entitlement to a
total disability rating based on
individual unemployability prior to April 2002. Because the Board analyzed
the credibility and
probative value of the evidence, accounted for the evidence that it found
to be persuasive or
unpersuasive, and provided the reasons for its rejection of any material
evidence favorable to Mr.
Strother, the Court concludes that the Board provided an adequate
statement of reasons or bases for
(Fed. Cir. 2004) (explaining that the interpretation of filings to
determine if an informal claim has been filed is
"essentially a factual inquiry"); Ellington v. Nicholson, 22 Vet.App. 141,
144 (2007); Beverly v. Nicholson, 19 Vet.App.
394, 405 (2005).
9


its decision. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per
curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table); see also 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990).
C. The Secretary's Implicit Denial and Abandonment Arguments
Although the Court is affirming the Board decision, the Court feels
compelled to briefly
address the Secretary's implicit denial and abandonment arguments.
Specifically, the Secretary
arguesthat"anyincreased ratingclaim initiated by[Mr. Strother]
'suntimelyDecember1995[Notice
of Disagreement] was adjudicated, either explicitly or impliedly, by the [
regional office]'s January
1996 response, or that it was abandoned because [he] did not respond to
the January 1996 . . .
response." Secretary's Br. at 14.
With respect to the Secretary's abandonment argument, the Court notes that
the January1996
letter from VA erroneously instructed Mr. Strother to provide new and
material evidence to reopen
his claim for benefits for Crohn's disease before VA would "take any
action on [his] appeal." R. at
396. However, there is no requirement that a claimant produce new and
material evidence to make
a claim for an increased disability rating and, therefore, Mr. Strother's
failure to produce such
evidence cannot be deemed to be an abandonment of any informal claim for
an increased disability
rating that might have arisen from his untimely filing of the Notice of
Disagreement.
Next, with respect to the Secretary's implicit denial argument, a letter
from VA informing
Mr. Strother that his Notice of Disagreement was untimely is not an
adjudication and, therefore,
cannot operate as an implicit denial. See Adams v. Shinseki, 568 F.3d 956,
960 (Fed. Cir. 2009)
(explaining that a claim for VA benefits, whether formal or informal,
remains pending until it is
finally adjudicated); Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) ("[
A] reasonably raised
claim remains pending until there is either a recognition of the substance
of the claim in a [regional
office] decision from which a claimant could deduce that the claim was
adjudicated or an explicit
adjudication of a subsequent 'claim' for the same disability."). Moreover,
as noted above, VA
mischaracterized Mr. Strother's untimely Notice of Disagreement as a
request to reopen, instead of
as a claim for an increased disability rating, and, therefore, he was not
put on notice that the January
1996 letter was a denial of his claim for an increased disability rating.
Adams, 568 F.3d at 965 ("[T]he implicit denial rule is, at bottom, a notice provision."); Locklear v. Shinseki, __ Vet.App. __, __, No. 09-2675, slip. op. at 6, 2011 WL 474693 at *4 (Feb. 11, 2011) (
stating that a claim is
10


implicitly denied "when a reasonable person would understand from a
decision that his request for benefits not explicitly addressed in the decision nevertheless implicitly was adjudicated and denied by that decision"). Accordingly, the Court concludes that the Secretary's implicit denial and abandonment arguments are without merit.

III. CONCLUSION
Upon consideration of the foregoing, the April 17, 2009, Board decision is
AFFIRMED.
DATED: April 18, 2011
Copies to:
Sean A. Ravin, Esq.
VA General Counsel (027)
11

Single Judge Application, Frederick v. Shinseki, No. 09-433, Restoration of DIC

Excerpt from decision below:
"Mrs. Plouffe's claim was denied because she filed for restoration of her
DIC benefits after December 16, 2004. Pursuant to Frederick, this is an improper basis for denying restoration of DIC benefits. See Frederick, 2011 WL 922279, at *4 (December 16, 2004 is "an end date for submission of an initial application as opposed to a window in which a second or additional application must be submitted")."

======================================

----------------------------------------------------

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2324
VIRGINIA PLOUFFE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Virginia Plouffe, surviving spouse of veteran Ellis
Riggs, appeals through counsel a February19, 2009, decision of the Board of
Veterans'Appeals (Board) that denied restoration of dependency and indemnity compensation (DIC) benefits because she did not file for restoration by December 16, 2004. On January 12, 2011, this matter was stayed pending the disposition of the appeal in Frederick v. Shinseki, U.S. Vet. App. No. 09- 433 (argued Nov. 23, 2010). Frederick has been decided; thus, the stay is lifted. See Frederick v. Shinseki, No. 09-433, 2011 WL 922279 (Vet. App. Mar. 11, 2011). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, the Board's decision will be set aside and the matter remanded for further adjudication.
Mrs. Plouffe's claim was denied because she filed for restoration of her
DIC benefits after December 16, 2004. Pursuant to Frederick, this is an improper basis for denying restoration of DIC benefits. See Frederick, 2011 WL 922279, at *4 (December 16, 2004 is "an end date for submission of an initial application as opposed to a window in which a second or additional application must be submitted"). Accordingly, remand is appropriate. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). On remand, Mrs. Plouffe may present, and the Board must consider, any additional evidence and argument in support of the matter remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.

For the reasons stated above, the February 19, 2009, decision of the Board
is SET ASIDE
and the matter REMANDED for further adjudication.
DATED:
April 14, 2011
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
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