Tuesday, November 1, 2011

Mason v. Shinseki, No. 08-2669, (Argued August 25, 2011 Decided October 28, 2011), Section 5904(c)(1)

Excerpt from decision Dissent below: "The majority's application of section 5904(c)(1) in this instance contravenes the purpose behind the statute. As shown above, such an application is not mandated by the statute, our caselaw, or the canons of interpretation. Finally, this is a significant issue, involving considerations of due process, a right to adequate legal representation, and a right to contract. See Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 312-16 (1985); Stanley, 283 F.3d at 1355-57. Factors underlying the original enactment of attorney fee limitations, such as concerns about unscrupulous attorneys, and even factors underlying the Supreme Court's decision in Walters to reverse a preliminary injunction on such limitations are now different or no longer present. Compare Walters, 473 U.S. at 321-22, with Veterans Judicial Review Act, Pub. L. No. 100-687 (Nov. 18, 1988) (effective June 1, 1989)." 20 ============================ UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 08-2969 KENNETH B. MASON, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. FREDERICK L. TRAWICK, INTERVENOR. On Appeal from the Board of Veterans' Appeals (Argued August 25, 2011 Decided October 28, 2011) Kenneth M. Carpenter, of Topeka , Kansas, for the appellant. Anthony C. Scire, Jr., and Joan E. Moriarty, Deputy Assistant General Counsel, with whom Will A. Gunn, General Counsel, and R. Randall Campbell, Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee. Michael J. Nardotti, Jr., with whom Elizabeth M. Gill was on the brief, both of Washington, D.C., for Frederick L. Trawick as intervenor. Thomas J. Reed, of Wilmington, Delaware, for the Veterans Law Clinic of Widener University School of Law as amicus curiae.1 Before KASOLD, Chief Judge, and HAGEL and SCHOELEN, Judges. SCHOELEN, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed a dissenting opinion. SCHOELEN, Judge: The appellant, attorney Kenneth B. Mason, appeals through counsel 1 The Court would like to extend its appreciation to Thomas J. Reed of the Veterans Law Clinic at Widener University of School of Law who submitted written argument, as amicus curiae, in support of Mr. Trawick, who was initially unrepresented when he first requested to intervene in this proceeding. a May 22, 2008, Board of Veterans' Appeals (Board) decision that determined he was not eligible to receive payment of attorney fees from past-due benefits awarded to veteran Frederick L. Trawick. Record of Proceedings (R.) at 3-9. The veteran and intervenor, Mr. Trawick, filed a brief disputing Mr. Mason's entitlement to payment of attorney fees from the award of past-due benefits. The Board determined that "[t]he requirements for payment of attorney fees in the amount of 20[%] of past-due benefits payable to the veteran, in the calculated amount of $53,472.53, have not been met" because (1) Mr. Trawick did not retain Mr. Mason until August 3, 1998, more than one year after a June 6, 1997, Board decision; and (2) Mr. Mason did not file a copy of the fee agreement with the Board and did not notify the regional office (RO) within 30 days of its execution, as required by 38 C.F.R. § 20.609(g), (h)(4) (2007). This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Because Mr. Mason has not demonstrated clear error in the Board's finding that he was not retained within one year of the June 6, 1997, Board decision, the Court will affirm the Board's 2008 determination that he is not eligible for payment of attorney fees for services provided in proceedings before VA because his fee agreement did not comply with the requirements of 38 U.S.C. § 5904(c)(1). I. BACKGROUND On June 6, 1997, the Board issued a decision in which it found that the veteran, Mr. Trawick, did not present new and material evidence sufficient to reopen a claim for entitlement to VA compensation benefits for a psychiatric disorder. R. at 1148-56. Mr. Trawick filed a motion for reconsideration (R. at 1146), which was denied by the Board Chairman on June 19, 1998. R. at 1129-31. While his motion for reconsideration was pending, Mr. Trawick also initiated an appeal to this Court on September 8, 1997. After the Board Chairman denied Mr. Trawick's motion for reconsideration, on August 3, 1998, Mr. Mason entered into two representation agreements with the veteran. The first fee agreement was a pro bono representation agreement, which applied solely to Mr. Trawick's appeal before the Court under docket number 97-1589.2 The pro bono representation agreement states: 2 The Court notes that the pro bono representation agreement is not included in the record of proceedings. However, because the agreement was filed with the Court on August 4, 1998, under 2 I hereby retain you to represent me before the [Court]. . . . This agreement applies only to my appeal before [the Court] and does not apply to any representation before the U.S. Court of Appeals for the Federal Circuit [(Federal Circuit)] in the event of any appeal or before the U.S. Department of Veterans Affairs in the event of a remand. Such representation will be covered by other agreements, if any. The agreement also provided that Mr. Mason would not charge Mr. Trawick "a fee or litigation expenses for representation under this agreement" and Mr. Trawick agreed that Mr. Mason may request an award of attorney fees and expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Finally, the agreement stated that Mr. Mason would have "no obligation" to Mr. Trawick "unless and until" Mr. Mason signed and returned a copy of the agreement to Mr. Trawick. The second fee agreement, also executed on August 3, 1998, and at issue here, was a contingent fee agreement for representation solely before the Board and the RO. R. at 1111-14. The agreement states: "I hereby retain you to represent me before the Board . . . and the [RO] . . . to prosecute my claim for disability compensation benefits. . . . This agreement does not cover representation before [the Court] or the [Federal Circuit,] which will be covered by other agreements." R. at 1113. In this agreement, Mr. Trawick, the veteran, agreed to pay 20% of the gross amount of any past-due benefits award to attorney Mason as a "contingency fee" and further agreed that VA may withhold such amount and make payment directly to the attorney. Id. The agreement also permitted the veteran to discharge the attorney "at any time" upon written notice with the following proviso: "If I discharge you after you have fully or substantially performed or contributed substantially to the results finally obtained by me, I shall be liable for payment of the fee set forth above." R. at 1113-14. Finally, the agreement contained a paragraph entitled "COMMENCEMENT OF REPRESENTATION," which stated: "Your [Mr. Mason's] responsibility under this agreement will not commence unless or until (1) you receive a copy hereof signed by me [Mr. Trawick] and (2) you date, sign[,] and return the agreement to me." R. at 1114 (capitalization in original). Pursuant to the Secretary's unopposed motion to vacate the Board's June 6, 1997 decision, docket number 97-1589, the Court will take judicial notice of its content. See Cotant v. Principi, 17 Vet.App. 116, 124 (2003) (taking judicial notice of pleadings filed in case pending before Court that raised same question of statutory interpretation); Shepard v. Gober, 10 Vet.App. 486, 487 (1997) (taking judicial notice of record on appeal and pleadings filed in concurrent cases). 3 on October 8, 1998, the Court vacated the Board's decision and remanded the matter for further development. R. at 1124-28. Mr. Mason filed a copy of the August 3, 1998, contingency fee agreement with the Board and the RO on December 18, 1998. R. at 1111-14. In his correspondence, Mr. Mason noted that the agreement was dated August 3, 1998, but that "[r]epresentation began in April[] 1998, when [Mr. Trawick] contacted [him]." R. at 1111. On January 4, 1999, the Board wrote to Mr. Mason to inform him that it received a copy of the fee agreement and that there appeared to be a "potential problem" in that the fee agreement was executed more than one year after the June 1997 Board decision. R. at 145-47 (citing 38 U.S.C. § 5904(c)(1)). The Board acknowledged that Mr. Mason's December 1998 correspondence indicated that representation began in April 1998 and requested "evidence" to show that Mr. Mason was retained within one year of the June 1997 Board decision. Id. The December 1998 correspondence contains a handwritten note in the margin, which states: "[R]ep[resentation] began on 4/23/98[,] altho[ugh] not reduced to writing."Id.3 Following the Court's October 1998 remand, Mr. Mason is named as the representative of the veteran on three occasions. See R. at 1064-74 (Apr. 28, 2000, Board decision reopening claim for entitlement to benefits for a psychiatric disorder); 1085-88 (Dec. 1, 1999, Board remand); and 1104-07 (Apr. 15, 1999, Board remand). In the April 28, 2000, Board decision, the Board found that new and material evidence had been submitted to reopen Mr. Trawick's claim for entitlement to benefits for a mental disorder and further found the claim to be well grounded. R. at 1066. On May 19, 2000, Mr. Trawick sent Mr. Mason a letter informing him that he no longer needed his services. R. at 206. On the same date, Mr. Trawick also appointed Disabled American 3 The record contains an unsigned affidavit, which appears to have been drafted for Mr. Trawick's signature, but there is no indication in the record that he ever executed the affidavit. R. at 213. The affidavit states that it is being made "in answer to the letter of the Board . . . dated January 4, 1999, . . . to demonstrate that I retained my attorney, Kenneth B. Mason, within one year of the final Board decision herein dated June 6, 1997[,] as required by 38 U.S.C. § 5904(c)(1) and 38 C.F.R. § 20.609(c)(3)." Id. The document states that Mr. Trawick first spoke with Mr. Mason, on or about October or November 1997, and that in April 1998 he called Mr. Mason to represent him. Id. Finally, the document states: "We discussed the terms of representation, and they were finally put in writing in July 1998 and executed in August 1998. I believe this shows that I retained Mr. Mason within [one] year of the final Board decision dated June 6, 1997." Id. 4 Veterans (DAV) as his representative (R. at 1015); in January 2003, he appointed the American Legion (R. at 452); and in August 2004, he re-appointed DAV (R. at 459). On March 10, 2005, while Mr. Trawick was represented by DAV, the RO notified him of its decision, which granted entitlement to benefits for schizo-affective disorder, bipolar type, and assigned a 100% disability rating, effective August 12, 1992, the date of Mr. Trawick's claim to reopen. R. at 502-19. The RO subsequently informed Mr. Mason and Mr. Trawick that it had determined that Mr. Mason was entitled to payment of attorney fees in the amount of $53,472.53 because the requirements of 38 U.S.C. § 5904 and 38 C.F.R. § 20.609 had been met. R. at 495-96. In April 2005, Mr. Trawick filed a Notice of Disagreement asserting, in relevant part, that "Mr. Mason has not represented me since 1999. . . . I have had DAV represent me since 1999 when Mr. Mason told me he could not represent me anymore." R. at 482. The RO issued a Statement of the Case in October 2005 stating that "[c]urrent representation by the private attorney is not a statutory or regulatory prerequisite to VA's payment of attorney fees from past-due benefits." R. at 220-38, 237. The RO also stated that direct payment could be made provided that "all other statutory and regulatory requirements for payment of fees, as well as the terms of the agreement, have been met." R. at 237. In his Substantive Appeal, Mr. Trawick argued that "Mr. Mason did very little work on my case[.] [T]he technical work and the argument that won my claim was performed by the DAV. I request that the money withheld be released as soon as possible." R. at 205. In the May 22, 2008, decision here on appeal, the Board determined that "[t]he requirements for payment of attorney fees in the amount of 20[%] of past-due benefits payable to the veteran, in the calculated amount of $53,472.53, have not been met." R. at 5 (citing 38 U.S.C. § 5904 (2002) and 38 C.F.R. § 20.609 (2007)). The Board based its conclusion on two findings: (1) Mr. Trawick did not retain Mr. Mason until August 3, 1998, which was more than one year after the Board's June 6, 1997, decision; and (2) Mr. Mason did not file a copy of the fee agreement with the Board and did not notify the RO within 30 days of its execution, as required by 38 C.F.R. § 20.609(g), (h)(4). 5 II. THE PARTIES' CONTENTIONS The Court notes that the parties have provided extensive briefs regarding (1) Mr. Mason's eligibility to receive attorney fees pursuant to the August 3, 1998, contingency fee agreement and (2) the appropriate remedy assuming that the Court determined Mr. Mason was eligible to receive a fee. Because the Court has determined herein that Mr. Mason's eligibility to receive a fee rests on whether he satisfied the statutory requirements provided in 38 U.S.C. § 5904(c)(1), which we hold he did not, the Court will limit its remaining discussion of the parties' arguments to this issue. Both the Secretary and Mr. Trawick argue that Mr. Mason is not entitled to receive payment of attorney fees pursuant to the August 3, 1998, contingency fee agreement for services provided before the Board and the RO because Mr. Trawick retained Mr. Mason more than one year after the Board first made a decision in the case, i.e., June 6, 1997. Secretary's Supplemental Brief (Br.) at 8-12;4 Intervenor's Br. at 6-12. They argue that the contingency fee agreement between Mr. Mason and Mr. Trawick is subject to the one-year requirement set forth in 38 U.S.C. § 5904(c)(1) because the statute only exempts "services provided with respect to proceedings before a court" and the contingency fee agreement at issue here, executed more than one year after the June 6, 1997, decision, was limited to services provided before the Board and the RO. Id. Mr. Mason makes three arguments in response. First, he argues that the Board's order that denied entitlement to fees was not premised on Mr. Mason's not having met the statutory requirements to charge a fee. Appellant's Reply Br. to the Intervenor at 2. Second, he argues that he met the statutory requirements because he was "retained" within one year of the Board's June 6, 1997, decision. Id. at 3. Mr. Mason asserts that although the contingency fee agreement was not executed until August 3, 1998, he "commenced his representation of Mr. Trawick in April 1998." Id. Third, he argues that his "representation of Mr. Trawick and his entitlement to charge a fee was premised upon his representation of Mr. Trawick before this Court [in docket number] 97-1589."Id. The Court notes that 4 the Secretary's initial brief in this matter posited that Mr. Mason's retention as counsel more than one year after the Board's June 6, 1997, decision did not preclude him from receiving direct payment of attorney fees under 38 U.S.C. § 5904(d). Secretary's Br. at 6-8. The Secretary modified his position and argued for affirmance of the Board's decision in his supplemental brief. 6 III. LAW A. Statutory and Regulatory Provisions The statutory provision that governs an attorney's entitlement to charge and receive a fee for services provided in connection with a proceeding before VA is 38 U.S.C. § 5904(c)(1). In 1998, when Mr. Mason and Mr. Trawick executed the fee agreement at issue, section 5904(c)(1) provided: (c) (1) Except as provided in paragraph (3), in connection with a proceeding before the Department with respect to benefits under laws administered by the Secretary, a fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which the Board of Veterans' Appeals first makes a final decision in the case. Such a fee may be charged, allowed, or paid in the case of services provided after such date only if an agent or attorney is retained with respect to such case before the end of the one-year period beginning on that date. The limitation in the preceding sentence does not apply to services provided with respect to proceedings before a court. 38 U.S.C. § 5904(c)(1).5 Section 5904(d) provided that when a claimant and an attorney enter into a fee agreement, under which the total amount of the fee payable to the attorney "is to be paid to the attorney by the Secretary directly from any past-due benefits awarded on the basis of the claim" and "is contingent on whether or not the matter is resolved in a manner favorable to the claimant,""the total fee payable to the attorney may not exceed 20 percent of the total amount of any past-due benefits awarded on the basis of the claim." 38 U.S.C. § 5904(d)(1),(2)(A). A claim is considered "to have been resolved in a manner favorable to the claimant if all or any part of the relief sought is granted." 38 U.S.C. § 5904(d)(2)(B). The 5 Court notes that Congress amended section 5904(c)(1) in 2006 to permit an agent or attorney to charge a fee for services in connection with a proceeding before VA after the date on which a Notice of Disagreement is filed with respect to the case. See 38 U.S.C. § 5904(c)(1) (2006). However, Congress explicitly provided for prospective application of the amended statute, stating that it "shall take effect on the date that is 180 days [June 20, 2007] after the date of enactment of this Act [Dec. 22, 2006] and shall apply with respect to services of agents or attorneys that are provided with respect to cases in which [N]otices of [D]isagreement are filed on or after that date." Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, tit. I, § 101(h), 120 Stat. 3403, 3408. 7 The Secretary's implementing regulation, which prescribes when an attorney may charge a fee for services in a proceeding before VA, 38 C.F.R. § 20.609 (1998), entitled "Payment of representative's fees in proceedings before the Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals," provided in relevant part: (c) Circumstances under which fees may be charged. Except as noted in paragraph (d) of this section, attorneys-at-law and agents may charge claimants or appellants for their services only if all of the following conditions are met: (1) A final decision has been promulgated by the Board . . . with respect to the issue, or issues, involved; (2) The Notice of Disagreement which preceded the Board . . . decision with respect to the issue, or issues, involved was received by the agency of original jurisdiction on or after November 18, 1988; and (3) The attorney-at-law or agent was retained not later than one year following the date that the decision by the Board . . . with respect to the issue, or issues, involved was promulgated. (This condition will be considered to have been met with respect to all successor attorneys-at-law or agents acting in the continuous prosecution of the same matter if a predecessor was retained within the required time.) 38 C.F.R. § 20.609 (c)(1),(2),(3). B. In re Fee Agreement of Mason6 In In re Fee Agreement of Mason, 13 Vet.App. 79, 81-85 (1999), the Court addressed whether an attorney was eligible to receive a fee for services provided in a proceeding before VA subsequent to a successful appeal to this Court, where the claimant and the attorney entered into the fee agreement for legal services before the Court, the Board, and VA, more than one year after the Board first made a final decision in the case. The Court held that because the attorney was not retained within one year after the Board issued its first decision in the case, the attorney was ineligible to charge a fee for services provided in a proceeding before the Board or VA. Id. at 84. The appellant-attorney argued that the requirement in section 5904(c)(1) that the attorney be retained within one year after the first Board decision was not applicable in this circumstance because his services provided before the Agency on remand were a continuation of proceedings before the Court. See 38 U.S.C. § 5904(c)(1) (stating that "[t]he limitation in the preceding sentence does not apply 6 Although the appellant-attorney in the instant proceeding is the same attorney whose fee agreement was discussed in In re Fee Agreement of Mason, the matter currently before the Court is otherwise unrelated to those proceedings. 8 to services provided with respect to proceedings before a court"). The Court rejected this argument stating, "in general, after a remand is issued by this Court, proceedings at the VA level are not a continuation of proceedings before this Court so as to be exempt from the section 5904(c)(1) limitations on charging attorneys fees." In re Fee Agreement of Mason, 13 Vet.App. at 85. The Court stated, however, that "an attorney is always entitled to charge a fee for representation on matters before this Court, and may be entitled to direct payment from the Secretary from past-due benefits awarded as a result of such representation." Id. (emphasis added). The Court held, [t]herefore, where an attorney successfully represents a VA claimant before this Court and has filed a qualifying attorney-client fee agreement which directs payment by the Secretary from an award of past-due benefits awarded on the basis of the claim filed with VA, the Secretary is obligated to pay directly to the attorney 20% of the past-due benefits awarded on the basis of the claim or application for benefits underlying the issues successfully appealed to this Court. That payment could be entirely dependent on the attorney's services before this Court, depending on the fee agreement, and, under the express terms of section 5904(c)(1), would not be subject to the limitations in section 5904(c)(1). Id. at 86 (emphasis in original). The Court recognized, however, that there is no statutory provision that prevents an attorney from providing the claimant legal services on remand. Rather, the restriction provided in section 5904(c)(1) solely limits an attorney's ability to charge a fee for services provided before VA when he is retained more than one year after the Board first makes a final decision in the case. The Court in In re Fee Agreement of Mason explained that, on remand, "providing further services before the Board and VA would, of course be in the best interest of the attorney to assist the claimant in securing any award of past-due benefits" but that "continued representation" does not generate an additional fee. Id. IV. ANALYSIS A. Mr. Mason's Eligibility To Charge a Fee There is no dispute among the parties that the Board rendered its first final decision in the case on June 6, 1997. Thus, pursuant to 38 U.S.C. § 5904(c)(1), to be eligible to charge and receive a fee for services provided in a proceeding before VA, Mr. Mason must demonstrate that he was 9 retained not later than one year after the June 6, 1997, decision. 38 U.S.C. § 5904(c)(1) (1998); 38 C.F.R. § 20.609(c)(3) (1998). To the extent that Mr. Mason argues that the Board's decision to deny eligibility for payment of attorney fees from the past-due benefits award was not premised on the failure to meet the statutory requirements, he is mistaken. The Board clearly and succinctly stated that the "fee agreement was not compliant with legal requirements" because "[t]he veteran's former attorney was not retained by the veteran until August 3, 1998, more than one year after the Board decision was issued." R. at 8. The Board supported its conclusion by stating that "[t]his is evidenced by the attorney fee agreement dated on August 3, 1998, and . . . the retaining of an attorney is shown by a qualifying fee agreement within the required time period." Id. at 8-9. Hence, the Court will proceed to address the parties' remaining arguments to determine whether Mr. Mason has demonstrated error in the Board's conclusion that he is not entitled to attorney fees based on the award of past-due benefits. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears the burden of demonstrating error on appeal). As noted above, the first fee agreement executed on August 3, 1998, applied solely to Mr. Mason's representation of Mr. Trawick at the Court. Mr. Mason does not contend that he is entitled to payment of a fee pursuant to this agreement, nor should he. Mr. Mason expressly agreed not to charge a fee for his representation of Mr. Trawick under that agreement. Hence, although section 5904(c)(1) does not limit the period in which an attorney must be retained to be eligible to charge a fee for services provided in proceedings before a court, Mr. Mason agreed not to charge Mr. Trawick a fee for representation provided at the Court under docket number 97-1589. Thus, to the extent that Mr. Trawick's award of past-due benefits resulted from Mr. Mason's representation in matters before the Court, the explicit terms of the "pro bono" fee agreement filed in connection with docket number 97-1589 do not contemplate payment of a fee from Mr. Trawick. Mr. Mason argues that he is entitled to receive a fee pursuant to the contingency fee agreement, also executed on August 3, 1998, asserting that he satisfied the requirements of section 5904(c)(1). In this regard, he makes two alternative arguments, which the Court will address in turn. Mr. Mason argues that "[a]lthough the fee agreement was not executed until August 1998, [he] commenced his representation of Mr. Trawick in April 1998." Appellant's Reply Br. to the 10 Intervenor at 3 (citing R. at 1111-12). At oral argument, Mr. Mason argued that there is a distinction between being "retained" within the one-year period referenced in section 5904(c)(1) and having an "executed fee agreement" within one year after the Board first makes a decision in the case. He argued that the Board's finding that he was not "retained" until August 3, 1998, was clearly erroneous because it was based on an incorrect interpretation of section 5904(c)(1). The Court disagrees. Even assuming that Mr. Mason is correct, i.e., that there is a distinction between being "retained" within the one-year period referenced in section 5904(c)(1) and having an "executed fee agreement" within the one-year period, the Court is not "left with the definite and firm conviction" that the Board's determination that Mr. Mason was not retained until August 3, 1998, was clearly erroneous. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The only evidence before the Board supporting Mr. Mason's contention that he was retained within one year after the Board's June 6, 1997, decision was Mr. Mason's December 18, 1998, correspondence to the Board in which he stated that his "[r]epresentation of Mr. Trawick began in April, 1998, when Mr. Trawick] contacted him" but that the agreement was not reduced to writing until after the Board Chairman denied Mr. Trawick's motion for reconsideration. R. at 1111. However, the August 3, 1998, contingency fee agreement at issue here, included the following specific terms, which speak to when Mr. Trawick retained Mr. Mason to represent him: "I hereby retain you to represent me before the Board . . . and the [RO] . . . to prosecute my claim for disability compensation benefits. . . . This agreement does not cover representation before [the Court] or the [Federal Circuit] which will be covered by other agreements." R. at 1113 (emphasis added); see WEBSTER'S NEW WORLD DICTIONARY 631 (3d college ed. 1988) (defining "hereby" as "by or through this; by this means"); BLACK'S LAW DICTIONARY 1317 (7th ed. 1999) (defining "retainer" as "[a] client's authorization for a lawyer to act in a case"). Moreover, under the "COMMENCEMENT OF REPRESENTATION" section, Mr. Mason and the veteran agreed that Mr. Mason's responsibility under the agreement would not commence until each party signed the agreement and received a signed copy from the other party to the agreement. R. at 1114 (capitalization in original). The agreement bears Mr. Mason's signature and indicates that it was "[a]ccepted and agreed to" on August 3, 1998. Id. As always, it is the Board's responsibility, in its role as factfinder, to assess the credibility of, 11 and weight to be given to the evidence of record, and the Court may overturn the Board's decision only if it is clearly erroneous. Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005); Owens v. Brown, 7 Vet.App. 429, 433 (1995). In this case, Mr. Mason has not presented the Court with any basis upon which to find the Board's determination in this matter clearly erroneous. Mr. Mason's assertion that his representation of Mr. Trawick began in April 1998 appears to stand in direct conflict with the express terms of the fee agreement, which indicated that (1) Mr. Trawick, by and through the means of the August 3, 1998, representation agreement, retained Mr. Mason to represent him before the Board and the RO, and (2) Mr. Mason's responsibility under the agreement did not commence until at least August 3, 1998, the date Mr. Mason executed the fee agreement noting his "accept[ance] and agree[ment]." R. at 1113-14. Accordingly, because Mr. Mason has not demonstrated clear error in the Board's determination that he was not retained until August 3, 1998, which is more than one year after June 6, 1997, the undisputed date on which the Board first made a final decision in the case, his argument must fail. Mr. Mason's alternative argument in support of his contention that he satisfied the requirements of section 5904(c)(1) is that his representation of Mr. Trawick and his entitlement to charge a fee was premised upon his representation of Mr. Trawick at the Court. Appellant's Reply Br. to the Intervenor at 3. In this regard, Mr. Mason appears to rely on the exception noted in section 5904(c)(1), which states that "[t]he limitation in the preceding sentence does not apply to services provided with respect to proceedings before a court." 38 U.S.C. § 5904(c)(1). However, this argument is not availing because the Court rejected a similar argument made by Mr. Mason in In re Fee Agreement of Mason, 13 Vet.App. at 84-85, when it held, "in general, after a remand is issued by this Court, proceedings at the VA level are not a continuation of proceedings before this Court so as to be exempt from the section 5904(c)(1) limitations on charging attorneys fees." 13 Vet.App. at 85. Thus, in In re Fee Agreement of Mason, the Court held that "[b]ecause Mr. Mason was not retained within one year after [the Board first made a decision in the case], he [was] not eligible to charge a fee for services provided in a proceeding before the Board or VA, regarding the issues involved in the [Board decision]" even though he represented the veteran in the proceedings before the Court. 13 Vet.App. at 84-85. Mr. Mason's reliance on the Secretary's implementing regulation, 38 C.F.R. § 20.609(c)(3) 12 (1998), is similarly misplaced. Section 20.609(c)(3) essentially reiterated the statutory requirement that an attorney or agent be retained within one year after the Board first made a decision in the case. In addition, the regulation contained a parenthetical, which stated: "This condition will be considered to have been met with respect to all successor attorneys-at-law or agents acting in the continuous prosecution of the same matter if a predecessor was retained within the required time." 38 C.F.R. § 20.609(c)(3) (emphasis added). Mr. Mason relies on the emphasized language to argue that because Mr. Trawick properly retained Mr. Mason for representation before the Court, that action permitted them to enter into a valid fee agreement for continuous prosecution of the same matter before the Board and the RO. However, Mr. Mason fails to explain how this regulation is applicable in this case, where the language of the regulation addresses continuous prosecution by "successor" attorneys or agents. Although Mr. Mason and Mr. Trawick executed two fee agreements, the Court finds the facts in this case sufficiently analogous to the facts in In re Fee Agreement of Mason, 13 Vet.App. 79, to be informed whether Mr. Mason is entitled to receive a fee for his continual representation of Mr. Trawick on remand, when he was not retained by Mr. Trawick within one year after the Board first made a decision in the case. What is clear from the Court's decision in In re Fee Agreement of Mason is that continuing representation on remand from this Court does not necessarily entitle an attorney to charge a fee for those services provided in the proceeding before the Agency. Rather, entitlement to a fee for services before the Agency is dependent on the terms of the fee agreement and whether the attorney was retained within the one-year period referenced in section 5904(c)(1). Id. at 84 (holding that the attorney was not eligible to receive a fee for services provided before the Agency after a successful appeal to the Court pursuant to a contingency fee agreement, which provided for representation before the Court, the Board, and the RO, because he was not retained within the one-year period referenced in section 5904(c)(1)). Mr. Mason's arguments ignore the clear distinction drawn in In re Fee Agreement of Mason regarding an attorney's eligibility to charge a fee for services when he is retained more than one year after the Board first makes a decision in the case. 13 Vet.App. at 83-86. Pursuant to section 5904(c)(1), an attorney may not charge for services provided before the Board or the RO when he is retained more than one year after the Board first makes a final decision in the case. Id. at 83. 13 However, regardless of when the attorney is retained, an attorney may generally charge a fee for services provided at the Court and may receive direct payment from the Secretary pursuant to a qualifying contingency fee agreement on issues successfully appealed to the Court. Id. at 85-86. This case creates an even clearer application of In re Fee Agreement of Mason because, here, (1) Mr. Mason agreed not to charge Mr. Trawick a fee for services provided at the Court, see Fee Agreement filed August 4, 1998, in connection with docket number 97-1589; and (2) as found by the Board, Mr. Mason was not retained within one year of the June 6, 1997, Board decision. Thus, to the extent Mr. Trawick's past-due benefits award is related to issues successfully appealed to the Court, Mr. Mason agreed not to charge a fee for those services. And, to the extent Mr. Trawick's past-due benefits award is related to services provided in a proceeding before the Board and the RO pursuant to the separate contingency fee agreement, Mr. Mason's eligibility to receive a fee for those services is subject to the limitation in section 5904(c)(1) that he be retained within one year after the Board first makes a final decision in the case. Because Mr. Mason has not demonstrated clear error in the Board's determination that he was not retained until August 3, 1998, more than one year after the June 6, 1997, Board decision, he is not eligible to charge a fee for services provided before the Board and the RO pursuant to the August 3, 1998, contingency fee agreement. See 38 U.S.C. § 5904(c)(1); In re Fee Agreement of Mason, supra. B. Mr. Mason's Additional Arguments The Court notes that Mr. Mason argued in his opening brief that (1) the Board erred when it determined that he was not entitled to charge and receive a fee because he failed to file a copy of the fee agreement with the Board in compliance with 38 C.F.R. § 20.609(g) and failed to notify the RO of the fee agreement in compliance with § 20.609(h)(4); (2) the Board improperly relied on these regulations without affording him notice of its intent to consider provisions of law not relied upon by the RO in violation of 38 C.F.R. § 20.903(b); and (3) the Court should admonish the Board for failing to provide him and his representative with a copy of the May 22, 2008, decision here on appeal. The Court will not address the merits of Mr. Mason's additional arguments, however, because Mr. Mason's failure to be retained within one year of the June 6, 1997, Board decision is dispositive of the issue before the Court, and therefore, he cannot meet his burden of demonstrating prejudicial error with regard to these arguments. See Shinseki v. Sanders, 129 S. Ct. 1696, 1704 14 (2009) (noting that the statute requiring this Court to "take due account of prejudicial error [] requires the Veterans Court to apply the same kind of 'harmless error' rule that courts ordinarily apply in civil cases"). C. Issues Not Raised by the Parties The Court notes that Mr. Trawick filed with the Board a motion for reconsideration of the June 6, 1997, decision and that the Court's caselaw provides that the filing of the motion of reconsideration within the 120-day judicial appeal period abates the finality of the Board decision for purposes of filing a timely Notice of Appeal at the Court. See Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991); see also May v. Nicholson, 19 Vet.App. 310 (2005). However, because the parties do not argue that Mr. Trawick's motion for reconsideration in any way abated the finality of the June 6, 1997, Board decision for purposes of being "the date on which the Board . . . first makes a final decision in the case," 38 U.S.C. § 5904(c)(1), the Court will take no position on the effect, if any, of Mr. Trawick's motion for reconsideration. While our dissenting colleague would like to reach this issue, and in fact opines that Mr. Trawick's motion for reconsideration abated the finality of the Board's June 6, 1997, decision, the Court is hesitant to address this issue and refuses to do so, especially given the vast amount of briefing that has been submitted in this matter, which has nonetheless resulted in the absence of any argument, particularly from Mr. Mason, that the June 6, 1997, Board decision was not the first final Board decision in the case. Specifically, neither Mr. Mason, an attorney with more than $53,000 at stake in this litigation, nor his counsel, another experienced attorney, raised this issue to the Court, and none of the 10 pleadings, which were drafted by at least 5 attorneys and totaled 214 pages, contain any such abatement argument. Rather, this novel and interesting argument arose only in the inquisitive mind of our distinguished dissenting colleague, who, perhaps unfortunately for Mr. Mason, was not his representative. It is undisputed that "U.S. courts of appeals have the discretion to raise legal issues not raised by a party." Patton v. West, 12 Vet.App. 272, 283 (1999) (emphasis added); see also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) ("When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.") 15 (emphasis added). However, we disagree with our dissenting colleague that this case represents one of those rare instances when the Court should exercise that discretion. See Davis v. U.S., 512 U.S. 452, 464 (1994) (Scalia, J., concurring) (recognizing that, generally, "refusal to consider arguments not raised is a sound prudential practice," but that "there are times when prudence dictates the contrary"). Unlike in the Supreme Court cases cited by our dissenting colleague, we do not believe that the effect of Mr. Trawick's motion for reconsideration at the Board is an issue "antecedent to . . . and ultimately dispositive of'" the dispute before the Court that must be decided to avoid committing a legal error. See post at 19-20 (quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990) and citing U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) and Kamen, 500 U.S. at 99). Rather, we view this argument as indistinguishable from any other argument – novel or otherwise – that the Court would ordinarily deem abandoned by a party for a failure to raise it on appeal. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding that issues or claims not argued on appeal are considered abandoned). Considering arguments not raised by the parties essentially wrests control of the litigation away from the parties, who, for any number of reasons, may have chosen not to advance such arguments to the Court. In short, the Court will not invent an argument for a represented party who had ample opportunity and resources to make that same argument, but, for whatever reason–be it strategy, oversight, or something in between–did not do so. Cf. Forshey v. Principi, 284 F.3d 1335, 1357-58 (Fed. Cir. 2002) (noting that a "variety of considerations may counsel against consideration of an issue not decided or raised below" including whether the case was litigated pro se); Ned Chartering & Trading, Inc. v. Republic of Pak., 294 F.3d 148, 155 (D.C. Cir. 2002) ("[W]hile a Court may draw upon its own knowledge of applicable precedents in ruling on a motion, it is not required to unearth theories and precedents not cited by a party . . . . Bringing those precedents and theories to the attention of the district judge is the job of the party's attorneys."). It is important to remember that our disagreement with our dissenting colleague amounts to nothing more than a dispute over whether the Court should exercise its discretion to address an issue not raised by the parties, not whether the Court has the authority to do so. As stated above, the Court does not believe that resolution of the issue identified by our dissenting colleague is necessary to the disposition of the case, see 38 U.S.C. § 7261(a) (limiting the Court's scope of review to decided 16 relevant questions of law "to the extent necessary to its decision and when presented" (emphasis added)), and our dissenting colleague has not convinced us otherwise. Therefore, the Court will decline to address that issue. V. CONCLUSION After consideration of the pleadings of the appellant, the Secretary, the intervenor, and amicus curiae, and a review of the record, the Board's May 22, 2008, decision is AFFIRMED. KASOLD, Chief Judge, dissenting: Until recently,7 Congress restricted the right of a veteran to retain paid counsel for representation before the Secretary or the Board until after the Board issued its "first . . . final [Board] decision," and then only if the veteran retained paid counsel within one year of that final decision. 38 U.S.C. § 5904(c)(1) (1998). This statutory constraint on a veteran's right to retain paid counsel should not be read broadly. Cf. Brown v. Gardner, 513 U.S. 115, 117-18 (1994) (noting that interpretative doubt is to be resolved in the veteran's favor). There is no dispute in this case that Mr. Trawick's claim was denied by a June 1997 Board decision and that he retained paid counsel in August 1998, more than one year after that decision. There also is no dispute, however, that Mr. Trawick sought reconsideration of the June 1997 Board decision in August 1997, and that he retained paid counsel in August 1998, two months after he received notice in June 1998 that his request for reconsideration was denied. Because, as discussed below, the request for reconsideration abated finality of the June 1997 Board decision until the request was denied in June 1998, Mr. Trawick had the right to retain attorney Mason for a fee in August 1998. Additionally, Mr. Mason – who eventually was discharged by Mr. Trawick – had the right to seek reimbursement for the work he performed on Mr. Trawick's behalf prior to being discharged. Under such circumstances, the matter should be remanded for the Board to determine the fee that reflects Mr. Trawick's contribution. See Scates v. Principi, 282 F.3d 1362, 1366 (Fed. Cir. 2002) ("[A]n attorney . . . discharged by the client before the case is completed 7 In 2006, Congress altered section 5904(c)(1), such that veterans denied benefits in a rating decision may retain paid counsel for assistance the administrative and judicial appeal process "after the date on which the notice of disagreement is filed." 38 U.S.C. § 5904(c)(1) (2006). 17 [ ] is not automatically entitled to the full twenty percent fee. He may receive only a fee that fairly and accurately reflects his contribution to and responsibility for the benefits awarded."); Lippman v. Shinseki, 23 Vet.App. 243, 256 (2009) ("Because [the veteran] objected . . . to the payment of the supplemental attorney fee . . . , VA was obligated to review the fee agreement and reduce the fee to be paid if it was excessive or unreasonable."). "The concept of 'finality' with respect to judicial decisions does not have a single meaning applicable in all contexts." Stanley v. Principi, 283 F.3d 1350, 1355 (Fed. Cir. 2002); see also Clay v. United States, 537 U.S. 522, 527 (2003) ("Finality is variously defined . . . its precise meaning depends on context."). The same is true with respect to Board decisions. Stanley, 283 F.3d at 1355 (citing Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (addressing finality of a Board decision)). Thus, it is well settled, for example, that when a request for reconsideration is filed within the time permitted to file an appeal with the Court (120 days), finality is abated for purposes of filing an appeal, and a new 120-day period to appeal begins when the Board Chairman renders a decision on the reconsideration request. Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991) (holding that a motion for reconsideration abates the finality of the Board decision and that the appeal period is tolled); see Fithian v. Shinseki, 24 Vet.App. 146, 149 (2010) ("a Board decision is no longer final once a motion for reconsideration is [timely] filed"); Rickett v. Shinseki, 23 Vet.App. 366, 371 (2010) ("[F]inality does not attach until the Board Chairman renders a decision denying the [timely] motion for reconsideration . . . ."), rev'd on other grounds, 421 F. App'x 967 (Fed. Cir. 2011); see also ICC v. Bhd. of Locomotive Eng'rs, 482 U.S. 270, 284 (1987) ("[P]etitions for reconsideration . . . [render] the orders under reconsideration nonfinal."); Mondero v. Nicholson, 129 F. App'x 605, 607 n.1 (Fed. Cir. 2005) (acknowledging the adoption of Rosler in Linville v. West, 165 F.3d 1382, 1385-86 (Fed. Cir. 1999)). The same rationale applies with regard to the retention of counsel, and application of section 5904(c)(1). When a veteran proceeds on his own and files for reconsideration within one year of an adverse Board decision, finality of that decision is abated for the purposes of section 5904(c)(1), and, if reconsideration is denied, the claimant has one year from the date of the denial of reconsideration to retain paid counsel for further proceedings before the Board and Secretary. To hold otherwise, essentially would be to mandate a claimant to retain paid counsel when seeking reconsideration of 18 the Board decision, or lose the right to so retain paid counsel if the Board Chairman takes more than one year to render a decision. Cf. Rosler, 1 Vet.App. at 246 (rejecting as an "onerous burden" the notion that a claimant filing a motion for reconsideration must also file an appeal to the Court to preserve his right to appeal). No policy supports forcing a veteran to seek counsel while still pursuing a claim within the informal adjudication process below, or the loss of his right to do so when efforts to seek recourse are rejected more than a year later. As to the majority's belief that the issue of finality should not be addressed, I obviously disagree. I understand that there are policy reasons for the Court not to address an argument not explicitly raised, particularly when an appellant is represented by counsel and, as here, is an attorney himself. However, this issue was not "invent[ed]" solely by myself. Ante at section IV.C. Rather, it reasonably was raised by the statute, caselaw, the record of proceedings (which reflects the Board's recognition of Mr. Trawick's motion for reconsideration), and the well-established fact that finality depends on context. See Clay and Stanley, both supra; see also Forshey v. Principi, 284 F.3d 1335, 1357 n.20 (Fed. Cir. 2002) (an appellate court's "'duty is to enunciate the law on the record facts'" (quoting Empire Life Ins. Co. of Am. v. Valdak Corp., 468 F.2d 330, 334 (5th Cir. 1972))), overruled on other grounds by Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003). In addition, the dramatically fluctuating litigative posture of this case supports a discussion of the statutory interpretation issue raised by this case. In short, the Secretary initially agreed with Mr. Mason that (1) the Board erred as to Mr. Mason's eligibility, and (2) reasonableness was the only disputed issue. Amicus entered and likewise agreed. Only after Mr. Trawick intervened with a wellwritten brief did the Secretary change his position. Although the majority correctly note that 10 briefs were submitted in this case, they fail to recognize that the Secretary reversed his position in this litigation in the tenth and final brief. In this context, it is eminently understandable why Mr. Trawick did not explicitly present an alternative argument on section 5904(c)(1) in his briefs. Such circumstances only add to the propriety of addressing the statutory interpretation issue raised by this case. See Davis v. United States, 512 U.S. 452, 464 (1994) (Scalia, J., concurring) (generally, "refusal to consider arguments not raised is a sound prudential practice," but "there are times when prudence dictates the contrary"). Moreover, the issue is dispositive. See U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., 19 508 U.S. 439, 447 (1993) ("[A] court may consider an issue 'antecedent to . . . and ultimately dispositive of' the dispute before it, even an issue the parties fail to identify and brief." (quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990))). The majority's application of section 5904 (c)(1) – done without considering the effect of Mr. Trawick's motion for reconsideration on the finality of the Board decision or the commencement of the one-year period to retain paid counsel – serves to bar Mr. Mason from receiving any compensation for the work he did at the Board for Mr. Trawick. As shown above, a proper application of caselaw and canons of interpretation render a conclusion that Mr. Trawick's motion for reconsideration abated the finality of the June 1997 Board decision for the purposes of section 5904(c)(1) until the Chairman rendered a decision on that motion in June 1998, such that the retention agreement in this instance was entered into within one year of the first final Board decision. Further, the purpose of the one-year period to retain paid counsel was to obstruct the retention of attorneys for attempts to reopen claims after a number of years without any action. See 134 CONG. REC. S16,632-01 (Oct. 18, 1988) (Sen. Cranston, noting that the purpose of the one-year period was "to address the possibility of a claimant receiving a final B[oard] decision, waiting a number of years without any action, and then retaining an attorney to request a reopening and pursuit of the claim at the [RO] level"). That purpose is in no way fulfilled here, where Mr. Trawick never sat on his laurels with many years of inaction. Rather, he promptly sought reconsideration of his Board decision and promptly retained counsel after having his request for reconsideration denied. The majority's application of section 5904(c)(1) in this instance contravenes the purpose behind the statute. As shown above, such an application is not mandated by the statute, our caselaw, or the canons of interpretation. Finally, this is a significant issue, involving considerations of due process, a right to adequate legal representation, and a right to contract. See Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 312-16 (1985); Stanley, 283 F.3d at 1355-57. Factors underlying the original enactment of attorney fee limitations, such as concerns about unscrupulous attorneys, and even factors underlying the Supreme Court's decision in Walters to reverse a preliminary injunction on such limitations are now different or no longer present. Compare Walters, 473 U.S. at 321-22, with Veterans Judicial Review Act, Pub. L. No. 100-687 (Nov. 18, 1988) (effective June 1, 1989). 20 Although the one-year period in which a claimant may retain paid counsel for representation before the Secretary or the Board is restrictive of the right to retain paid counsel, the degree of restrictiveness is dependent on the meaning of when a Board decision becomes final for the purposes of section 5904(c)(1). Because the concept of finality is context dependent, Stanley, supra, and an overly restrictive application of section 5904(c)(1) is inconsistent with the purpose behind establishing the one-year period, we should address the meaning of finality as used in section 5904(c)(1) in the context of a motion for reconsideration, find that Mr. Trawick had a right to retain Mr. Mason for a fee in this case, and remand the matter for the Board to award a fee reflecting Mr. Mason's contribution to Mr. Trawick's case. 21

Federal Circuit's Application Presumption of Regularity, Bond v. Shinseki, 2010-7096, Decided: October 7, 2011

Were are revisiting the Federal Circuit's decision in Bond v. Shinseki, in regard to the presumption of regularity, below is both the Veterans Court decision and the Federal Circuit's decision. +++++++++++++++++++++++++++++++++++ Excerpt from Federal Circuit decision below: "That the RO treated the February 1998 submission as a new claim does not foreclose the possibility that it may have also contained new and material evidence pertaining to his October 1996 claim and, accordingly, could not have relieved the VA of its obligations under § 3.156(b). When pressed on this issue at oral argument, the government 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 Argument at 14:00, available at http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2010-7096.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 obligation 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 alternate analysis, resort to the presumption of regularity cannot create a record which is simply not there. Compare Jennings v. Mansfield, 509 F. 3d 1362, 1367 (Fed. Cir. 2007) (In discussing interplay between the presumption 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 evaluate 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. 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 Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were TONY WEST, Assistant Attorney 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 Department 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 unemployability (“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] presently 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 increased 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 manifestations of” PTSD. JA40. The RO, subsequently, construed 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 December 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 formal 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 effective 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 February 1998 submission as a new claim for an increased PTSD rating. The Board found that Mr. Bond had allowed 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 medical 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 contained 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 underlying RO decision does not become final). In a March 30, 2007 decision, the Veterans Court affirmed 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 Veterans Court, thus, remanded the case with instructions to “assign an effective date for Mr. Bond’s PTSD after considering,” among other things, “his February 1998 increased rating claim.” Id., at *12. On remand, the Board found that Mr. Bond’s February 1998 submission met the requirements for an informal 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 communication 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 constituted 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 argument based on res judicata. Specifically, the court held that its March 2007 decision “expressly ruled on” the issue of whether “the February 1998 submission constituted 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 Veterans 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 expiration of the” period for appealing a decision “will be considered 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 appealing the RO’s May 6, 1997 rating decision, the VA was required to determine whether that submission constituted 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 factual determination that he did not submit new and material 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 Appellee’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 submission 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 decision. 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 decision 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 relitigating 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 underlying submission constitutes new and material evidence relating to an existing claim, regardless of the nature of the evidence submitted and its relationship to any pending 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 purposes 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 government suggested, at oral argument, that Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005) compels a different result. The government’s reliance on Voracek is misplaced. 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 reopen my claim for PTSD as I feel this condition has worsened. I go to the Portland [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 substantiate” Voracek’s original claim for PTSD. Significantly, the issue before us today – whether the VA must make a determination as to whether evidence 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 government’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 submission as a new claim does not foreclose the possibility that it may have also contained new and material evidence pertaining to his October 1996 claim and, accordingly, could not have relieved the VA of its obligations under § 3.156(b). When pressed on this issue at oral argument, the government 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 Argument at 14:00, available at http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2010-7096.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 obligation 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 alternate analysis, resort to the presumption of regularity cannot create a record which is simply not there. Compare Jennings v. Mansfield, 509 F. 3d 1362, 1367 (Fed. Cir. 2007) (In discussing interplay between the presumption 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 evaluate 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. +++++++++++++++++++++++++++++++ Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 08-0089 RICHARD D. BOND, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before GREENE, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. GREENE, Chief Judge: Veteran Richard D. Bond appeals, through counsel, a September 14, 2007, decision of the Board of Veterans' Appeals (Board) that denied entitlement to an effective date earlier than July 7, 1999, for a rating of total disability based on individual unemployability (TDIU). Record (R.) at 1-11. Mr. Bond argues that the Board failed to adequately apply 38 C.F.R. § 3.156(b), which allows for any new and material evidence received by a VA regional office (RO) prior to the expiration of the appeal period to be considered as having been filed in connection with a claim that was pending at the beginning of the appeal period. He therefore maintains that the Board's decision should be reversed and that he should be awarded an earlier effective date. The Secretary contends that in a March 2007 decision, the Court concluded that Mr. Bond failed to submit new and material evidence within the one-year appeal period, and that therefore Mr. Bond is barred, under the doctrine of res judicata, from relitigating that argument. Because the Court concludes that the only issue on appeal has already been finally decided in a previous Court decision, the Board's September 2007 decision will be affirmed. On October 4, 1996, Mr. Bond sought VA service connection for diabetes mellitus, which was awarded by the RO in May 1997 with a 30% disability rating, effective October 4, 1996. In February 1998, he requested a higher rating and submitted a January 1998 VA medical treatment record. His disabilityrating was increased to 70%, effective May1997, and he was awarded a TDIU rating, effective July 1999. Mr. Bond disagreed with the effective dates assigned, and eventually appealed to the Court. In March 2007, the Court, reviewing a September 2004 Board decision, held that "because new and material evidence was not submitted within one year of the May 1997 RO decision to retain the initial effective date, the Board did not err in not assigning an effective date earlier than May 1997 for Mr. Bond's 70% disability rating." Bond v. Nicholson, No. 05-0029, 2007 U.S. App. Vet. Claims LEXIS 539 (Mar. 30, 2007). The Court remanded the matter of the TDIU effective date for determination of whether Mr. Bond's February 1998 increased-rating claim reasonably raised a claim for a TDIU rating. Id. The September 2007 Board decision determined that the TDIU rating was effective February 11, 1998. This appeal followed. Mr. Bond argues that his February 1998 submission to the RO constituted new and material evidence within the one-year appeal period of the May 1997 RO decision and, therefore, he is entitled to a potential effective date as early as October 1996 for his TDIU rating. See 38 C.F.R. § 3.156(b) (2009). However, the March 2007 Court decision, which has expressly ruled on this issue, precludes the Court from relitigating it. See Previous HitBondNext Hit, supra; Allen v. McCurry, 449 U.S. 90, 94 (1980) ("Under [the doctrine of] res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action."). In that decision, the Court concluded that Mr. Bond's February 1998 submission constituted a claim for an increased rating and specifically held that new and material evidence was not submitted within the one-year appeal period as required under § 3.156( b). Bond, supra. Mr. Bond argues, unpersuasively, that the Court's decision did not constitute a final decision because the Court vacated the Board's decision and remanded the matter of the effective date of TDIU. See Chisem v. Brown, 8 Vet.App. 374, 375 (1995) ("'Where a case is addressed by an appellant court, remanded, then returned to the appellate court, the "law of the case" doctrine operates to preclude reconsideration of identical issues.'" (quoting Johnson v. Brown, 7 Vet. App. 25, 26 (1994)). It is clear from the Court's decision that the issue of whether the February 1998 submission constituted new and material evidence submitted during the one-year appeal period that should have been associated with Mr. Bond's original claim at that time under § 3.156(b) was clearly and finally 2 decided by the Court in 2007 and that holding is binding on VA. See Stegall v. West, 11 Vet.App. 268, 271 (1998) (remand byCourt or Board imposes upon Secretary duty to ensure compliance with the terms of the remand); Chisem and Johnson, both supra. Although Mr. Bond argues that his case presents "exceptional circumstances" such that res judicata should not apply, because the Board's findings were different in the previous 2004 Board decision reviewed by the Court in March 2007 than they were in the decision currently on appeal (Appellant's Reply Brief at 7-10), this is not supported by the evidence of record. Compare R. at 529-46; with R. at 1-11. Indeed, Mr. Bond's assertion that the 2007 Board's findingof fact that he had aGlobal Assessment of Functioning (GAF) score of 40 in December 1996 was different from the 2004 Board's findings is directly contradicted by the fact that the 2004 Board specifically noted Mr. Bond's December 1996 GAF score of 40 in its decision. R. at 540. Accordingly, the Court is not convinced that the evidence before the 2007 Board was substantially different than the evidence that was before the 2004 Board. See Chisem, 8 Vet.App. at 375 (recognizing three exceptions to the law-of-the-case doctrine, one being "when the evidence at trial was substantially different from that in the former trial upon which the appellate court based its decision" (citing Kori Corp. v. Wilco Marsh Buggies and Draglines, Inc., 761 F.2d 649, 657 (Fed. Cir. 1985)). The Board relied on this Court's March 2007 determination that Mr. Bond's February 1998 submission was an increased-rating claim and its findings and the evidence of record before it are consistent with that conclusion. See R. at 1-11; Chisem, supra. Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings, the September 14, 2007, Board decision is AFFIRMED. DATED: February 26, 2010 Copies to: Kenneth M. Carpenter, Esq. VA General Counsel (027) 3 ++++++++++++++++++++++++++++++++++++++++