Wednesday, December 28, 2011

Panel Decision, Applicability and Waiver of 120-Day Filing Rule

Excerpts from decision below; "Accordingly, we hold that the 120-day period is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior 4 to this Court's Henderson decision. ====================================== "II. CONCLUSION For the reasons stated above, thttp://veteranclaims.wordpress.com/wp-admin/post-new.php?post_type=posthe Court holds that the 120-day filing period in section 7266(a) is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior to this Court's Henderson decision, but that it is not subject to waiver or forfeiture by the Secretary." ====================================== UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 08-1468 ANTHONY BOVE, APPELLANT, AND NO. 09-3758 AQUEL RASHEED, APPELLANT, AND NO. 10-2139 ALFONSO LOPEZ, APPELLANT, AND NO. 10-2622 WESLEY L. KING, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge, and MOORMAN and DAVIS, Judges. O R D E R As a result of this Court's decision in Henderson v. Peake, 22 Vet.App. 217 (2008) (holding that the 120-day time limit to file a Notice of Appeal (NOA) was jurisdictional and not subject to equitable tolling), a significant number of appeals were dismissed for lack of jurisdiction due to the untimely filing of an NOA. Although Henderson was affirmed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), 589 F.3d 1201 (Fed. Cir. 2009), the U.S. Supreme Court ultimately held that the 120-day time limit to file an NOA pursuant to 38 U.S.C. § 7266(a)1–although an important procedural rule–was not jurisdictional, 131 S. Ct. 1197, 1206 (2011). The Supreme Court 1 "In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans' Appeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title." 38 U.S.C. § 7266(a). expressed "no view" on the question of whether this rule was subject to equitable tolling. Id. at 1206, n.4. The case was remanded to the Federal Circuit, id. at 1206, and remanded without further comment by the Federal Circuit to this Court, 417 F. App'x 982 (Fed. Cir. 2011). These cases are consolidated for the sole purpose of addressing whether the 120-day filing period is subject to equitable tolling and, if so, whether the circumstances in each case warrant equitable tolling. See U.S. VET. APP. R. 3(e) ("Appeals may be consolidated by order of the Court on its own initiative or on a party's motion."). The facts, in short summary, follow. In Bove, subsequent to a November 9, 2007, Board decision, the pro se appellant filed an NOA at the regional office (RO) on January 14, 2008. At that time, he had 54 days remaining before his 120-day appeal period expired on March 10, 2008. The RO, however, did not forward the NOA to the Court until May 12, 2008, well after the 120-day period had expired. The Secretary moved to dismiss the appeal on July 23, 2008, for lack of jurisdiction and, in further briefing, expressly opposed equitable tolling (May 2009 Supplemental Memorandum of Law at 3-5). The appellant, through counsel, responded that this Court had jurisdiction to consider his appeal based on Santana-Venegas v. Principi, 314 F.3d 1293 (Fed. Cir. 2002) (accepting NOA submitted to the RO within the 120-day appeal period). See June 18, 2009, Appellant's Response to Mar. 12, 2009, Court Order at 4, 11. The Secretary did not thereafter respond. The Court dismissed the appeal based on a lack of jurisdiction, but the Federal Circuit vacated that dismissal after the Supreme Court's decision in Henderson. See 421 F. App'x 965 (Fed. Cir. 2011). In Rasheed, subsequent to a January 12, 2009, Board decision, the appellant filed through counsel an NOA at this Court on October 9, 2009, well after the 120-day period had expired. The Secretary moved to dismiss the appeal based on a lack of jurisdiction. Subsequently, the appellant asserted that his mental disabilities prevented him from timely filing his NOA and that the notification he received regarding how to appeal was not properly tailored to his circumstances. The Secretary did not thereafter respond. The Court dismissed the appeal based on a lack of jurisdiction, but the Federal Circuit vacated that dismissal after the Supreme Court's decision in Henderson. See 424 F. App'x 953 (Fed. Cir. 2011). In Lopez, subsequent to a February 25, 2010, Board decision, the appellant filed through counsel an NOA at the Court on June 28, 2010, one business day after the expiration of the 120-day appeal period. He asserts that his mental disabilities prevented him from timely filing his NOA. In briefing subsequent to the Supreme Court's decision in Henderson, the Secretary generally asserts that section 7266(a) is subject to equitable tolling and that equitable tolling might be appropriate in this instance. The Court has not yet acted on Mr. Lopez's appeal. In King, subsequent to a March 8, 2010, Board decision, the pro se appellant filed an NOA at the RO on May 26, 2010. At that time, he had 41 days remaining before his 120-day appeal period expired on July 6, 2010. The RO, however, did not forward it to the Court until August 9, 2010, well after the 120-day period had expired. The Secretary presented no objection or comment as to whether the time to file should be equitably tolled. The Court dismissed the appeal based on lack of jurisdiction, but the appellant has filed for reconsideration. 2 We first discuss whether the 120-day period is subject to equitable tolling, and what weight should be accorded to the Secretary's position as to whether equitable tolling should be accorded in any given case. We thereafter address each of the cases consolidated herein. I. ANALYSIS A. An Important Procedural Rule When creating the United States Court of Appeals for Veterans Claims and granting it jurisdiction to review decisions of the Board, Congress prescribed a 120-day period for appeals to this Court. See 38 U.S.C. § 7266(a).2 Initially viewed as a jurisdictional barrier to the exercise of this Court's authority to review Board decisions, see Butler v. Derwinski, 960 F.2d 139, 140-41 (Fed. Cir. 1992); Cleary v. Brown, 8 Vet.App. 305, 307 (1995), over time it was held to be a time limitation that could be equitably tolled. Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc) (relying on Irwin v. Dep't of Vet. Affairs, 498 U.S. 89 (1990), and holding that equitable tolling generally was available in suits against the United States, unless Congress has expressed its intent to the contrary); see Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) (en banc). Subsequently, however, applying the Supreme Court's analysis in Bowles v. Russell, 551 U.S. 205 (2007) (finding that the time limitation set forth in 28 U.S.C. § 2107, regarding appeals from a district court to a court of appeals, was jurisdictional and not subject to equitable tolling), this Court determined that the Bowles analysis pre-empted Bailey and its progeny and held that the 120-day period is jurisdictional and not subject to equitable tolling. Henderson, 22 Vet.App. at 217-21. As noted above, the Federal Circuit agreed and explicitly overturned Bailey and its progeny. Henderson, 589 F.3d at 1220. In reversing the Federal Circuit, the Supreme Court specifically noted, inter alia, the unique statutory scheme of veterans benefits adjudication and the terms and placement of section 7266(a) within the Veterans' Judicial Review Act of 1988, Pub. L. No. 100-687, before ultimately concluding that the 120-day limit to file an appeal for judicial review is not jurisdictional. Henderson, 131 S. Ct. at 1204-07. Significantly, the Supreme Court also noted that section 7266(a) is "an important procedural rule" and explicitly expressed "no view" on the question of whether this rule is subject to equitable tolling. Id. at 1206, n.4. 2 Although the typical filing period for civil-action appeals involving federal agencies in the federal courts is 60 days, see, e.g., Fed. R. App. P. 4(a)(1)(B) (providing that when the United States or an agency is a party, a notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered); 5 U.S.C. § 7703(b)(1) ("any petition for review [shall be filed in the Federal Circuit and] must be filed within 60 days after the date the petitioner received notice of the final order or decision of the [Merit Systems Protection Board]"); 15 U.S.C. § 77i(a) (providing for review of orders from Securities and Exchange Commission by the D.C. Circuit within 60 days after the entry of such order); 28 U.S.C. § 2344 ("Any party aggrieved by [a] final order [of specified agencies] may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies."), Congress enacted a more liberal, 120-day time limit for filing at this Court. See Pub. L. No. 100-687 (1988); see also Bailey v. West, 160 F.3d 1360, 1369 (Fed. Cir. 1998) (Michel, J., concurring in the result) ("Both the Supreme Court and this court have long recognized that the disputes that arise in this system are subject to procedural and other rules that are distinctly advantageous to the veteran claimant" (citing, inter alia, Brown v. Gardner, 513 U.S. 115, 117-18 (1994))). 3 Although reversing one decision that, in turn, had reversed previous decisions generally has the effect of reinstating those previous decisions, see Wheeler v. John Deere Co., 935 F.2d 1090, 1096 (10th Cir. 1991) ("A judgment reversed by a higher court is 'without any validity, force or effect, and ought never to have existed.'" (quoting Butler v. Eaton, 141 U.S. 240, 244 (1891))); see also Keller v. Hall, 111 F.2d 129, 131 (9th Cir. 1940), this is true only when the foundation of the other decisions is not disturbed, cf. Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 891 (1985) (addressing whether a recent decision undermined the force of a previous case's analysis). Here, although Bailey and its progeny held that this Court's 120-day period was subject to equitable tolling, these cases did so without the benefit of the Supreme Court's analysis of section 7266(a)'s context within the Veterans' Judicial Review Act of 1988 and the unique statutory scheme of veterans benefits or the Supreme Court's explicit recognition that the 120-day period was an important procedural rule. In this context, and inasmuch as neither the Supreme Court nor the Federal Circuit in remanding this matter expressed a view as to whether section 7266(a) may be subject to equitable tolling, we examine anew to what degree, if any, this "important procedural rule" is subject to equitable tolling. B. Equitable Tolling and Section 7266(a) The doctrine of equitable tolling has generally established parameters, and over time decisions of the Federal Circuit and this Court have addressed those parameters in the context of appeals to this Court. Thus, for example, equitable tolling was not applied when failure to file was due to general negligence or procrastination. Rather, it was applied only when circumstances precluded a timely filing despite the exercise of due diligence, such as (1) a mental illness rendering one incapable of handling one's own affairs or other extraordinary circumstances beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the regional office or the Board. See, e.g., Brandenburg v. Principi, 371 F.3d 1362, 1364 (Fed. Cir. 2004) (NOA submitted to Board); Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004) (mental illness rendering one incapable of handling his own affairs); Santana-Venegas, 314 F.3d at 1298 (NOA submitted to RO); Bailey, 160 F.3d at 1365-68 (reliance on incorrect statement of VA official); McCreary v. Nicholson, 19 Vet.App. 324 (2005) (extraordinary circumstances), adhered to on reconsideration by 20 Vet.App. 86 (2006). From the time of the Bailey decision in 1998 through this Court's decision in Henderson, the Court has applied equitable tolling without any significant adverse consequences, such as "administrative complexity or unpredictable fiscal peril," reasons why we might otherwise determine that the 120-day period should not be tolled when presented with circumstances that otherwise warrant equitable tolling. Bailey, 160 F.3d at 1365. Based on this observation, and the Federal Circuit's observation that "there is no reason to believe that Congress wanted to bar [the] application [of equitable tolling] to section 7266," id. at 1368, we perceive no valid reason for not permitting the 120-day period to be equitably tolled within the parameters established in Bailey and its progeny, and the precedential decisions of this Court prior to this Court's Henderson decision. Accordingly, we hold that the 120-day period is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior 4 to this Court's Henderson decision. In so holding, we are mindful that Congress has authorized the Court to prescribe its own rules of practice and procedure, see 38 U.S.C. § 7264, such that our holding today is subject to revision, pursuant to the Court's rule-making authority. C. Waiver or Forfeiture and Section 7266(a) Having held that the 120-day period is subject to equitable tolling, we turn to an issue of first impression. Specifically, because the Secretary generally agrees that equitable tolling might be applied in Lopez, presented no objection or comment as to equitable tolling in King, and objected to equitable tolling in Bove and Rasheed with the understanding at the time that the time to file was jurisdictional, we must address whether tolling the 120-day period remains a matter for the Court to raise sua sponte and whether it is subject to waiver or forfeiture by the appellee. We note that nonjurisdictional statutory time limitations subject to equitable tolling generally are subject to waiver and forfeiture. See Union Pacific R. Co. v. Bhd. of Locomotive Eng'rs and Trainmen, 130 S. Ct. 584, 596 (2009) (noting that nonjurisdictional rule "is ordinarily 'forfeited if the party asserting the rule waits too long to raise the point'" (quoting Kontrick v. Ryan, 540 U.S. 443, 456 (2004)); Day v. McDonough, 547 U.S. 198, 202 (2006) ("Ordinarily in civil litigation, a statutory time limitation is forfeited if not raised in a defendant's answer or in an amendment thereto [pursuant to the Federal Rules of Civil Procedure]. And we would count it an abuse of discretion to override a State's deliberate waiver of a limitations defense."). We further note that whether civil litigation has been initiated in a timely manner generally is an affirmative defense raised by an opposing party, as opposed to a matter sua sponte raised by the Court. See John R. Sand & Gravel Co. v. U.S., 552 U.S. 130, 133 (2008) (citing the Federal Rules of Civil Procedure and noting that "the law typically treats a limitations defense as an affirmative defense . . . subject to rules of forfeiture and waiver"); but see Day, 547 U.S. at 202 (holding that a federal court may, "on its own initiative," dismiss a habeas petition as untimely where the State has miscalculated and not objected to the timeliness of the petition). However, we do not believe the general rule is for application in appeals to this Court. Unlike ordinary civil litigation, the appellee in appeals to this Court is always the same person–the Secretary of the Department of Veterans Affairs, who also is barred by statute from initiating an appeal to the Court. 38 U.S.C. § 7252. To hold that the Secretary could affirmatively or by forfeiture waive the 120-day filing period would cede some control of the Court's docket to the Secretary and permit arbitrary selection of which veteran's late filing he finds worthy of waiver, a process devoid of consistency, procedural regularity, and effective judicial review. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984) ("'[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.'" (quoting Mohasca Corp. v. Silver, 447 U.S. 807, 826(1980))); see also National RR Passenger Corp v. Morgan, 536 U.S. 101, 113 (2002) ("'Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.'" (quoting Baldwin County Welcome Center, 466 U.S. at 152)). In a very real sense, permitting the Secretary to waive the time to appeal to the Court would give him unwarranted control over any late-filed appeal, a control he 5 otherwise is barred by statute from having. 38 U.S.C. § 7252 ("The Secretary may not seek review of any [Board] decision."). In addition, this Court specifically was formed as a federal appellate court–a judicial body independent of the Secretary–in reaction to the previous regime of complete control by the Secretary over the law governing VA benefits. See, e.g., H.R. REP. No. 100-963, at 26 (1988) ("The creation of [this Court] is intended to provide a more independent review by a body which is not bound by the [Secretary's] view of the law, and that will be more clearly preceived [sic] as one which has as its sole function deciding claims in accordance with the Constitution and the laws of the United States."). Permitting this "important procedural rule" to be enforced or waived at the discretion of the Secretary could lead to an appearance for litigants that this Court is not independent, but that the Secretary remains in control of the litigation. At a more system-wide level, the Court's sua sponte consideration of the timeliness of an appeal under section 7266(a) promotes judicial efficiency by encouraging the timely resolution of claims and providing finality to Board decisions within a reasonable time and fairness in application of the equitable tolling doctrine. In other words, the 120-day judicial appeal period "'implicat[es] values beyond the concerns of the parties.'" Day, 547 U.S. at 205-06 (quoting Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000) ("The AEDPA statute of limitation promotes judicial efficiency and conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time.")); see also John R. Sand, 552 U.S. at 133 (noting that some statutes of limitations seek "to achieve a broader system-related goal, such as facilitating the administration of claims . . . or promoting judicial efficiency"). As the Federal Circuit has noted: [I]n order to get its work done, [the Court] must insist on strict compliance with its [R]ules. Violations of [the Rules] . . . are all too frequent. In addition to imposing an unfair burden on opposing parties, violations of our [R]ules also burden the[C]ourt. The [C]ourt must consider a large number of appeals each year. It can only conduct its work fairly and efficiently if counsel cooperate by abiding by the pertinent [R]ules. In re Violation of Rule 28(c), 388 F.3d 1383, 1385 (Fed. Cir. 2004). As to the Supreme Court precedents generally allowing waiver, these cases do so in the context of "ordinary civil litigation," governed by the Federal Rules of Civil Procedure (FRCP). See John R. Sand, 552 U.S. at 133 (noting that "the law typically treats a limitations defense as an affirmative defense . . . subject to rules of forfeiture and waiver," but citing the FRCP); Day, 547 U.S. at 202 (noting that "[o]rdinarily in civil litigation, a statutory time limitation is forfeited if not raised," but citing the FRCP). Pursuant to statute, this Court is not governed by the FRCP. See 38 U.S.C. § 7264 ("The proceedings of the Court of Appeals for Veterans Claims shall be conducted in accordance with such rules of practice and procedure as the Court prescribes."). 6 Of particular note, and in contrast to procedures in ordinary civil litigation, our Rules do not envision complaints and answers thereto or affirmative defenses. See U.S. VET. APP. R. 28(outlining requirements for appellate briefing). Moreover, whereas proper dismissal of a case for untimely filing in ordinary civil litigation puts an end to the matter, in the veteran-friendly claims adjudication process within VA, a claimant may seek (1) reconsideration by the Board at any time(38 U.S.C. § 7103), (2) to reopen his claim based on new and material evidence at any time (38 U.S.C. § 5108), (3) revision of an adverse decision at any time (38 U.S.C. §§ 5109A and 7111), or (4) equitable relief from the Secretary (38 U.S.C. § 503). Finally, we note that, in 1994, Congress explicitly amended section 7266 to authorize a notice of appeal as filed on the date it is postmarked by the United States Postal Service. 38 U.S.C. § 7266(c)(2); Pub. L. No. 103-446 (1994); see also Mapu v. Nicholson, 397 F.3d 1375 (Fed. Cir. 2005) (finding that section 7266(c)(2) excludes other common carriers' postmarks). Such action, in view of section 7264 (granting the Court to authority to promulgate rules of practice and procedure), reasonably reflects that it is the role of Congress and the Court, not the Secretary, to enforce or adjust the "important procedural rule" prescribed by Congress in section 7266. Thus, for the reasons stated above, we hold that the 120-day time period in which to file an NOA is not a matter subject to waiver or forfeiture by the Secretary. Moreover, in addition to our holding above that the 120-day period is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior to this Court's Henderson decision, we further hold that this Court has the authority to address untimely filings and equitable tolling sua sponte, and may seek facts outside the record before the Board and independently weigh the facts to determine if equitable tolling is appropriate, in the same manner as the Court previously has considered equitable tolling. See Leonard v. Gober, 223 F.3d 1374, 1376(Fed. Cir. 2000) (acknowledging that determinations on the equitable tolling of section 7266(a)involve fact-finding by this Court, and holding that the Federal Circuit does not have jurisdiction to review such findings); McCreary, 19 Vet.App. at 332-34 (reviewing facts not before the Board to determine whether equitable tolling was appropriate). Because the 120-day period is not jurisdictional, however, we note that the untimely nature of a filing should be addressed before an appeal is submitted for decision. Cf. Breedlove v. Shinseki, 24 Vet.App. 7, 18 (2010) (noting that a case is submitted for decision "upon completion of the briefing period"). Thus, while an untimely filing may be raised by the Secretary, it more often, as in the past, is likely to be identified by the Clerk of the Court, after which an appellant will be directed to show cause why the appeal should not be dismissed. See U.S. VET. APP. R. 3(a) ("Failure to timely file a Notice of Appeal in accordance with law will result in dismissal of the appeal."); Claiborne v. Nicholson, 19 Vet.App. 181, 182 (2005) (recognizing the practice of the Clerk to order appellants to show cause as to why untimely filed appeals should not be dismissed); see also Bowles, 551 U.S. at 212 n.4 (noting authority of the Clerk of the Supreme Court to actually dismiss untimely filed petitions for certiorari of an individual on death row). Any such appeal will be dismissed in the absence of showing that the untimely appeal warrants equitable tolling or that the appeal should be considered timely because, for example, the presumption of regularity in mailing did not attach 7 to the Board decision or because the presumption was rebutted, thus making the filing timely. D. The Circumstances in the Consolidated Appeals 1. Bove v. Shinseki In Bove, the appellant filed an NOA with the RO well within the 120-day period, but the RO forwarded it to the Court after the 120-day period had expired. Pursuant to the equitable tolling principles laid out in Bailey and its progeny, an NOA filed within the 120-day period at the RO warrants equitable tolling. See Santana-Venegas, 314 F.3d at 1298; see also Brandenburg, 371 F.3d at 1364 (accepting NOA submitted to Board within the 120-day appeal period). As such, the appellant's appeal will be reinstated. 2. Rasheed v. Shinseki In Rasheed, the appellant asserts that his schizophrenia prevented him from timely filing his NOA and that the notification he received regarding how to appeal was not properly tailored to his circumstances. Specifically relying on the Federal Circuit's decision in Barrett, 363 F.3d at 1316, the appellant argued that he "is similarly situated to the Veteran in Barrett." Jan. 11, 2010, Appellant's Response to Court's Order and Appellee's Motion to Dismiss at 2. Pursuant to the Federal Circuit's decision in Barrett, equitable tolling may be warranted if an untimely filing "was the direct result of a mental illness that rendered [a claimant] incapable of rational thought or deliberate decision making, or incapable of handling [a claimant's] own affairs or unable to function in society." Barrett, 363 F.3d at 1321 (internal quotations omitted). Moreover, when represented by counsel, as is the case here, the appellant "must make an additional showing that the mental illness impaired the attorney-client relationship." Id. In contrast to what is required to warrant equitable tolling, however, the appellant presents only bald assertions that his mental illness prevented him from filing his appeal, without any supporting evidence to demonstrate that he was incapable of functioning or making decisions due to mental illness, that his mental illness prevented him from filing his appeal or seeking the assistance of counsel, or that his mental disabilities were related directly to his untimely filing. Further, in support of his assertion that his appellate notice rights were inadequate because they were not tailored to his circumstances, the appellant relies on Vasquez-Flores v. Peake, 22 Vet.App. 37 (2008). However, Vasquez-Flores addressed the notice required by 38 U.S.C. § 5103 with regard to substantiating a claim and is inapposite with regard to notice addressing how to appeal a Board decision. Moreover, the specificity requirement recognized in this Court's decision in Vasquez-Flores was rejected subsequently by the Federal Circuit. Vasquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In sum, the appellant fails to demonstrate that equitable tolling of the time to file his appeal is warranted, and his appeal will be dismissed. 8 3. Lopez v. Shinseki In Lopez, the date of the mailing of the appellant's Board decision was February 25, 2010, such that the final day for appealing that decision pursuant to section 7266(a) was Friday, June 25, 2010. The appellant's NOA was filed by his counsel and docketed by the Clerk of the Court as filed on Monday, June 28, 2010. Responding to the Court's order to show cause why his appeal should not be dismissed, the appellant does not dispute that he failed to file the NOA within the 120-day judicial-appeal period and requests that this Court equitably toll the filing deadline because he suffers from psychiatric disabilities that, he asserts, prevented him from timely filing his NOA. His assertion is supplemented by a letter from his treating psychiatrist, which states, inter alia, that (1) the appellant currently is diagnosed with avoidant personality disorder, major depressive disorder, obsessive compulsive disorder, and dependent personality disorder, (2) the appellant has "difficulty in making every day decisions without an excessive amount of advice and reassurance from others," and (3) the appellant's disorders "caused him to over-think and procrastinate until this deadline was passed." October 21, 2010, Response to Court Order at 4-5. The Secretary generally agrees that equitable tolling might be appropriate in this instance. See April 1, 2011, Secretary's Response at 10 (noting that this evidence "may be viewed as satisfying the Barrett test"). As stated above, however, the Barrett test requires a veteran to show that (1) "the failure to file was the direct result of a mental illness that rendered him incapable of rational thought or deliberate decision making, or incapable of handling his own affairs or unable to function in society," and, when represented by counsel, that (2) "the mental illness impaired the attorney-client relationship." Barrett, 363 F.3d at 1321 (internal quotations omitted) (emphasis added). Notably, in Claiborne v. Nicholson, 19 Vet.App. 181, 187 (2005), this Court found that a physician's letters explaining, inter alia, that the claimant had a "severely impaired" ability to handle his own affairs did not meet Barrett's "high standard" for equitable tolling. Here, similar to Claiborne, the evidence does not demonstrate an incapability of functioning or decision making due to mental illness or an impairment in seeking the assistance of counsel, but rather a procrastination or difficulty in making decisions due to mental illness. As such, the evidence on its face does not meet the Barrett test. Nevertheless, in review of the actual filing in this case, we note that–although docketed by the Clerk as filed on June 28, 2010–the NOA was attached to an e-mail sent on June 25, 2010. See E-Rule 2(c) ("For documents initiating a case . . . , such documents may also be filed by electronically attaching the document to an email sent to esubmission@uscourts.cavc.gov."). Although this e-mail (with attached NOA) was sent after the close of normal business hours on June 25, it was sent before midnight Eastern Time, such that this Court's Rules of Practice and Procedure and E-Rules deem the NOA filed on June 25. See E-Rule 5(c) ("To be timely filed on a specific date, electronic filing must be completed before midnight Eastern Time . . . ."); see also Rule 25(b)(3) ("The Clerk shall use the actual date of receipt [of the e-mail] for filing purposes"). Further, although this e-mail was sent to an incorrect e-mail address at the Court (i.e., to efiling@uscourts.cavc.gov, rather than esubmission@uscourts.cavc.gov), we hold that the appellant substantially complied with E-Rule 2(c). To the extent that there is any lack of clarity in our Rules or there has been any confusion on this issue, our holding today clarifies the matter. Accordingly, we find that the appellant's NOA was timely filed on June 25, 2010, and his appeal will be accepted. 9 4. King v. Shinseki In King, the appellant filed an NOA with the RO well within the 120-day period, but the RO forwarded it to the Court after the 120-day period had expired. As previously stated, an NOA filed within the 120-day period at the RO warrants equitable tolling. See Santana-Venegas, supra. As such, the appellant's motion for reconsideration will be granted, the Court's February 3, 2011, order dismissing the appeal will be revoked, and the appellant's appeal will be reinstated. II. CONCLUSION For the reasons stated above, the Court holds that the 120-day filing period in section 7266(a) is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior to this Court's Henderson decision, but that it is not subject to waiver or forfeiture by the Secretary. Upon consideration of the foregoing, it is ORDERED, sua sponte, that the above-captioned cases are consolidated for the sole purpose of addressing whether the 120-day filing period is subject to equitable tolling, and, if so, whether the circumstances in each case warrant equitable tolling. It is further ORDERED that the appeal in Bove, No. 08-1468, is reinstated, and the Secretary's July 23, 2008, motion to dismiss this appeal is denied. It is further ORDERED that the Secretary, not later than 30 days after the date of this order, shall file a notice certifying that the appellant in Bove was served with a copy of the record before the agency (RBA), U.S. VET. APP. R. 10(a). It is further ORDERED that, if any dispute arises as to the preparation or content of the RBA, the appellant in Bove, not later than 14 days after service of the RBA, shall file an appropriate motion with the Court, U.S. VET. APP. R. 10(b). It is further ORDERED that the appeal in Rasheed, No. 09-3758, is DISMISSED for untimely filing. It is further ORDERED that the Secretary, not later than 30 days after the date of this order, shall file a notice certifying that the appellant in Lopez, No. 10-2139, was served with a copy of the RBA. It is further ORDERED that, if there is any dispute as to the preparation or content of the RBA, the appellant in Lopez, not later than 14 days after service of the RBA, shall file an appropriate motion with the Court. It is further 10 ORDERED that the appellant's motion for reconsideration in King, No. 10-2622, is granted, and the February 3, 2011, order dismissing the appeal is revoked. It is further ORDERED that, if there is any dispute as to the preparation or content of the RBA, the appellant in King, not later than 14 days after the date of this order, shall file an appropriate motion with the Court. DATED: December 20, 2011 PER CURIAM. 11

Panel Decision, Castellano v. Shinseki, No. 09-3386 (Argued June 28, 2011 Decided December 22, 2011), Substantive Right Regarding Reports of Hospitalization, Treatment or Examination Authorized by VA

Excerpts from decision below; "For the reasons stated herein, we hold that (1) at the time Mrs. Castellano filed her claim, the Secretary authorized, inter alia, "[r]eports of hospitalization, treatment or examinations authorized by VA" to be deemed included in the file at the date of the veteran's death "even if such reports are not reduced to writing or are not physically placed in file until after death," VA ADJUDICATION PROCEDURES MANUAL M21-1 (M21-1), pt. VI, para. 5.06(c) (May 8, 2000), (2)this deemed inclusion was a substantive right that could not be eliminated except in accordance with law, (3) this substantive right was not eliminated properly until after Mrs. Castellano filed her claim and that change did not operate retroactively, and (4) Mrs. Castellano was entitled to the benefit of this right. We also hold, inter alia, that – although the Board is not per se prohibited from relying on many of the same reasons or bases supporting a previous Board decision that addressed the same matters but had been remanded for further adjudication – a Board decision on appeal nevertheless must stand on its own statement of reasons or bases(whether reiterating what had been stated in a previous Board decision or not) and otherwise adequately address the issues raised below." ========================================= "Although it is best practice for the Board explicitly to note and specifically respond to each additional argument raised on remand, the Board sufficiently meets its duty under Kay when it adequately addresses the issues raised. See D'Aries v. Peake, 22 Vet.App. 97, 105(2008) (substantial compliance, not strict compliance, is required under Stegall); Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (finding substantial compliance with remand order where, although examiner failed to presume exposure to asbestos, he "ultimately ma[d]e a determination as to whether asbestos contributed to [the claimant's] disability"); see also 38 U.S.C. § 7104(d)(1) (Board must adequately address "all material issues of fact and law presented on the record" (emphasis added)). Compare BLACK'S LAW DICTIONARY 907 (9th ed. 2009) [hereinafter BLACK'S] (defining "issue" as a "question of law or fact" or both), with BLACK'S at 16 121 (defining "argument" as a "statement that attempts to persuade"). =========================================== Concurring opinion: "Once we remove the Board's speculative determinations concerning the timing of the preparation of the report and consider the evidence in the record, it is clear that the Board erred when it found that the benefit of the doubt was "not implicated." This is precisely the scenario in which the determination as to when the report was prepared is "too close to call" and the benefit 27 of the doubt should have been afforded to the appellant. See Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001) ("[T]he benefit of the doubt rule may be viewed as shifting the 'risk of nonpersuasion' onto the VA to prove that the veteran is not entitled to benefits."). ============================================ UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-3386 MARGREIT CASTELLANO, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Argued June 28, 2011 Decided December 22, 2011) Norton Cutler and Michael Sink, of Denver, Colorado, for the appellant. Mark D. Vichich, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and David L. Quinn, Deputy Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee. Before KASOLD, Chief Judge, and DAVIS and SCHOELEN, Judges. KASOLD, Chief Judge, filed the opinion of the Court. SCHOELEN, Judge, filed a concurring opinion. KASOLD, Chief Judge: Margreit Castellano, surviving spouse of veteran Frederick C. Castellano, appeals through counsel that part of a July 7, 2009, decision of the Board of Veterans' Appeals (Board) that denied entitlement to (1) service connection for bipolar disorder, (2) service connection for Alzheimer's disease, (3) special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), and (4) a total disability rating based on individual unemployability (TDIU). Mrs. Castellano contends that the Board erred (1) in finding that a June 26, 2000, VA medical report and private nursing home records were not to be considered evidence in Mr. Castellano's claims file at the date of his death, (2) by not considering her arguments on remand, as evidenced by the Board's reissuing, in large part, the same statement of reasons or bases issued in a previous Board decision that had been remanded by the Court, and (3) in denying her claims. The Secretary disputes these arguments. For the reasons stated herein, we hold that (1) at the time Mrs. Castellano filed her claim, the Secretary authorized, inter alia, "[r]eports of hospitalization, treatment or examinations authorized by VA" to be deemed included in the file at the date of the veteran's death "even if such reports are not reduced to writing or are not physically placed in file until after death," VA ADJUDICATION PROCEDURES MANUAL M21-1 (M21-1), pt. VI, para. 5.06(c) (May 8, 2000), (2)this deemed inclusion was a substantive right that could not be eliminated except in accordance with law, (3) this substantive right was not eliminated properly until after Mrs. Castellano filed her claim and that change did not operate retroactively, and (4) Mrs. Castellano was entitled to the benefit of this right. We also hold, inter alia, that – although the Board is not per se prohibited from relying on many of the same reasons or bases supporting a previous Board decision that addressed the same matters but had been remanded for further adjudication – a Board decision on appeal nevertheless must stand on its own statement of reasons or bases(whether reiterating what had been stated in a previous Board decision or not) and otherwise adequately address the issues raised below. Given these holdings and based on the record on appeal and applicable law, that part of the Board decision on appeal will be set aside and the matters remanded for further adjudication consistent with this decision. I. FACTS Mr. Castellano served on active duty from April 1943 to October 1944. In October 1944, he was granted service connection for his mental condition, labeled at that time as "psychoneurosis." Record (R.) at 4196. Over time, Mr. Castellano's condition was labeled variously, including "personality disorder," "post-traumatic stress disorder" (PTSD), "mixed depression and anxiety with psychotic symptoms," "bipolar disorder," and "anxiety reaction." In the 1990s, Mr. Castellano also was diagnosed with Alzheimer's disease (also referred to in the record as "dementia" 1). On May 18, 2000, Mr. Castellano died. At the time of his death, he had pending adjudication an increased-rating claim for anxiety reaction (the regional office's (RO's) 1 "Alzheimer disease (dementia)" is defined as "a general loss of cognitive abilities, including impairment of memory, as well as . . . disturbed planning, organizing, and abstract thinking abilities." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 57, 492 (31st ed. 2007). 2 label for the psychoneurosis condition) and a claim for disability compensation for Alzheimer's disease, SMC, TDIU, and a psychiatric disorder other than anxiety reaction. Mrs. Castellano filed an accrued benefits claim on June 29, 2000. Her claim was denied in a September 2005 Board decision, but Mrs. Castellano appealed. Pursuant to a joint motion for remand (JMR), her claim was remanded for further adjudication of all matters except entitlement to accrued benefits for her husband's claim for increased benefits for serviceconnected anxiety reaction, which Mrs. Castellano explicitly abandoned. Her claim was denied again in a December 2007 Board decision, but subsequently remanded by the Court pursuant to another JMR. The 2009 Board decision here on appeal, inter alia, (1) found that a June 26, 2000, VA medical report of treatment or examination was prepared after Mr. Castellano's death and therefore could not be deemed in his file at the date of his death, (2) noted that private nursing home records also could not be considered in his file at the date of his death, and (3) maintained its denial of benefits for bipolar disorder, Alzheimer's disease, SMC and TDIU, reiterating many of the same reasons or bases supporting the December 2007 Board decision that had been remanded for further adjudication. This appeal followed. II. PARTIES' ARGUMENTS On appeal, Mrs. Castellano argues that the June 26, 2000, VA medical opinion and private nursing home records should have been deemed by the Board to be in Mr. Castellano's claims file at the date of his death, pursuant to provisions in the 1992 M21-1 that she asserts were declared substantive law by Hayes v. Brown, 4 Vet.App. 353, 360 (1993). She also argues that the 2009 Board decision on appeal (1) failed to address her arguments on remand and reprinted its statement of reasons or bases from a previous decision, therefore violating its Stegall duty to readjudicate the matters remanded, see Stegall v. West, 11 Vet.App. 268, 271 (1998), (2) erred in not applying the benefit of the doubt and finding Mr. Castellano's Alzheimer's disease not aggravated by his service-connected anxiety disorder, (3) erred in not applying the benefit of the doubt and finding that Mr. Castellano had no bipolar disorder, and (4) erred in denying SMC and TDIU, which are inextricably intertwined with the other matters. The Secretary contends that the M21-1 provisions relied on by Mrs. Castellano were revised on May 8, 2000, prior to her claim, and that she therefore was not entitled to the 3 application of the prior version. Moreover, he argues that the Board plausibly determined that the June 26, 2000, VA medical opinion was prepared after Mr. Castellano's death, and therefore was not constructively in the file at the date of his death. As to Mrs. Castellano's other issues, the Secretary argues that (1) Mrs. Castellano has failed to demonstrate the relevancy of the private nursing home records, (2) the Board substantially complied with its remand duties under Stegall, and (3) the Board plausibly rendered findings on Alzheimer's disease, bipolar disorder, SMC, and TDIU. III. DISCUSSION A. Evidence in the File at Date of Death As discussed below, we agree with Mrs. Castellano that (1) at the time of her claim, the Secretary authorized certain documents to be deemed in the file at the date of the veteran's death, and (2) she is entitled to the benefit of that authorization. 1. APA and the M21-1 Generally The Administrative Procedure Act (APA) mandates that Federal agencies publish their substantive rules, and amendments thereof, in the Federal Register, to provide notice to affected citizens and the opportunity to comment. See 5 U.S.C. §§ 552, 553; Morton v. Ruiz, 415 U.S. 199, 232 (1974) (APA provides that "administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations"). Although it was VA policy to comply voluntarily with the APA since 1972, VA was not otherwise required by law to comply with the APA until the Veterans' Judicial Review Act (VJRA) became effective in September 1, 1989. Compare Administrative Procedure Act, Pub. L. No. 89-554 (1966) (excluding matters relating to "benefits" from the APA), with Veterans' Judicial Review Act, Pub. L. No. 100-687 (1988)(subjecting VA to the APA); see also 38 C.F.R. § 1.12 (1972) ("It is the policy of the Department of Veterans Affairs to afford the public general notice, published in the Federal Register, of proposed regulatory development, and an opportunity to participate in the regulatory development in accordance with the provisions of the Administrative Procedure Act (APA). All written comments received will be available for public inspection.")). Thus, until passage of the VJRA, VA rules and regulations lived in "splendid isolation," generally unconstrained by 4 judicial review. Brown v. Gardner, 513 U.S. 115, 122 (1994); see Pub. L. 100-687 (permitting judicial review by this Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)). Given this unique history, it is not a surprise that substantive rules promulgated before the APA might be contained in the M21-1 or a directive, letter, or other document. See Buzinski v. Brown, 6 Vet.App. 360, 369 (1994) (noting that Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982), held that "VA handbooks, circulars, and manuals" may have the "force and effect of law" if they prescribe substantive rules); Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990) (the placement of a rule "in a procedural manual cannot disguise its true nature as a substantive rule"), aff'd, 972 F.2d 331 (Fed. Cir. 1992). Moreover, substantive rules promulgated prior to the statutory requirement that VA comply with the APA remain binding on the Secretary until they properly are revoked or amended. See Fugere, 1 Vet.App. at 110 (noting that a substantive rule may not be rescinded until the Secretary has "'published notice of his intention to rescind it, invited comment, put that comment . . . on the public record, and published a reasoned and reviewable explanation of his decision to rescind [it].'" (quoting Nat'l Wildlife Fed'n v. Watt, 571 F. Supp. 1145, 1156 (D.D.C. 1983))). This is consistent with procedural regularity and basic fair play required in adjudicating veterans' claims. See Thurber v. Brown, 5 Vet.App. 119, 123 (1993) (holding that veterans in particular are entitled to "procedural regularity and basic fair play" in the adjudication of their claims); Fugere, 1 Vet.App. at 108 ("'Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures." (quoting Morton, 415 U.S. at 235)).2 We also have held 2 that substantive procedural provisions favorable to a veteran and contained outside the Code of Federal Regulations are binding on the Secretary even if promulgated after VA was required by law to comply with the APA. See McCormick v. Gober, 14 Vet.App. 39, 49 (2000) (requiring the Secretary to request copies of SMRs and VA medical records pursuant to the substantive "VBA Letter Immediate Development provisions" from 1999); Patton v. West, 12 Vet.App. 272, 282 (1999) (stating that the Board "cannot ignore provisions of the Manual M21-1 . . . that are favorable to a veteran" and applying an altered substantive manual provision from 1997). These holdings similarly stem from the fair process notion that the Secretary must adhere to his own policies when adjudicating veterans' claims. See Morton, 415 U.S. at 235 ("Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required."); Thurber, supra; but see Guerra v. Shinseki, 642 F.3d 1046, 1050-51 (Fed. Cir. 2011) (acknowledging Secretary's position that the M21-1 is primarily "'an internal manual used to convey guidance to VA adjudicators [and] not intended to establish substantive rules beyond those contained in statutes and regulations.'" (quoting 72 Fed. Reg. 66,218 (Nov. 27, 2007)); Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (same); Fournier v. Shinseki, 23 Vet.App. 480, 487-88 (2010) (same). 5 Of course, it is now clear that a properly promulgated regulation trumps an M21-1 provision or other VA directive that plainly is erroneous or inconsistent with regulation. Compare Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011) ("VA interpretations of its own regulations in its Adjudication Procedures Manual [M21-1] are 'controlling' as long as they are not 'plainly erroneous or inconsistent with the regulation.'" (citing Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)))), Haas, 525 F.3d at 1197 (holding that an M21-1 inconsistent with regulation confers no rights on claimant), and Fournier, 23 Vet.App. at 487-88 (discussing Haas), with Cohen v. Brown, 10 Vet.App. 128, 139 (1997) ("Where the Manual M21-1 and the regulation overlap, the Manual M21-1 is irrelevant . . . . except where the Manual M21-1 is more favorable to the claimant."). 2. Applicable Substantive Law a. VA-Authorized Reports of Treatment At the time Mrs. Castellano filed her claim for accrued benefits on June 29, 2000, the law generally restricted the evidence that could be considered when adjudicating an accrued benefits claim to that which was "in the [veteran's] file at date of death." 38 U.S.C. § 5121. Exercising his authority to promulgate rules appropriate to carrying out the law, however, the Secretary authorized "[r]eports of hospitalization, treatment or examinations authorized by VA" [hereinafter "VA-authorized reports of treatment"] to be deemed in the file at date of death "even if such reports are not reduced to writing or are not physically placed in file until after death."3 M21-1, pt. VI, para. 5.25(a) (Sept. 21, 1992). This authorization dates back to at least 1985, before mandatory compliance with the APA. See M21-1, para. 56.24 (Sept. 5, 1985) ("Evidence 'in file' will be interpreted to include the following even if such reports are not reduced to writing or are not physically placed in file until after death: . . . Reports of hospitalization, treatment or examinations authorized by the VA."). In Hayes, this Court (1) recognized some confusion with the full scope of section 5121 as it related to evidence in the file at date of death, and (2) noted that "the Secretary has wide latitude in establishing departmental policy as to what post-date-of-death evidence may be 3 This provision also authorized service department records, reports of VA hospitalization, reports of treatment or examinations in VA medical centers including those in outpatient treatment folders, and reports of autopsy made by VA on the date of death to be deemed included in the file at date of death. M21-1, pt. VI, para. 5.25(a) (Sept. 21, 1992). 6 considered." 4 Vet.App. at 360; see also Hyatt v. Shinseki, 566 F.3d 1364, 1370 (Fed. Cir. 2009)(noting that the decision in Hayes, supra, rested on a "perceived conflict between subsections (a) and (c) of § 5121," but that the perceived conflict was resolved with an amended regulation promulgated in November 2002). The Court also discussed regulatory § 3.1000(d)(4) and noted that this section applied "only to evidence in the file at date of death and the death certificate and, does not, by its terms, contemplate the submission of any other post-death evidence." 4 Vet.App. at 358-59. The Court concluded that, "[t]o the extent that the[] Manual provisions affect what post-date-of-death evidence may be considered, they have the force of law as they affect a substantive right." 4 Vet.App. at 360 (quoting Fugere, 1 Vet.App. at 107) (internal quotation marks omitted). The Court also noted that the Secretary might consider clarifying his policy with regard to what evidence submitted after death could be considered when adjudicating an accrued benefits claim. Although the M21-1 was changed on May 8, 2000 (prior to the date Mrs. Castellano filed her claim), the changes made with regard to VA-authorized reports of treatment being deemed included in the file at date of death were cosmetic, such that notice and comment were not required. See Fugere, 1 Vet.App. at 110.4 As illustrated below, this language was moved to paragraph 5.06(c), with only a redundant phrase being removed. Specifically, the phrase "reports of treatment or examinations in VA medical centers including those in outpatient treatment folders," was removed; it was redundant with the language authorizing VA reports of treatment or examination to be deemed included in the file at the date of death. Compare M21-1, pt. VI, para. 5.25(a) (Sept. 21, 1992) (emphasis added), to wit: a. Evidence in File at Date of Death. Evidence 'in file' includes the following, even if such reports are not reduced to writing or are not physically placed in file until after death: (1) Service department records; (2) Reports of VA hospitalization; (3) Reports of treatment or examinations in VA medical center including those in outpatient treatment folders; (4) Reports of hospitalization, treatment, or examinations authorized by VA[;] and (5) Reports of autopsy made by VA on the date of death, 4 The Secretary ultimately promulgated a regulation that limited the evidence that could be included in the file at date of death to documents already in VA's possession, but he did not do this until November 27, 2002, well after Mrs. Castellano submitted her claim. See Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002); see also section III.A.3, infra. 7 with M21-1, pt. VI, para. 5.06(c) (May 8, 2000), to wit: c. Evidence in File at Date of Death. . . . Evidence 'in file' includes the following, even if such reports are not reduced to writing or are not physically placed in file until after death: (1) Service department records; (2) Reports of VA hospitalization; (3) Reports of hospitalization, treatment, or examinations authorized by VA; and (4) Reports of autopsy made by VA on the date of death. Accordingly, at the time Mrs. Castellano filed her claim, (1) the Secretary deemed VA authorized reports of treatment to be included in Mr. Castellano's claims file at the date of his death, (2) this deemed inclusion was a substantive rule promulgated prior to the APA and pursuant to the Secretary's statutory authority to promulgate rules, and (3) Mrs. Castellano was entitled to the benefit of this substantive rule. b. Evidence Identifying, Verifying, or Corroborating the Death Certificate 5 In contrast to the May 2000 cosmetic changes made to paragraph 5.25(a) of the 1992 M21-1, paragraph 5.25(b) of the 1992 M21-1 underwent substantive change. Specifically, paragraph 5.25(b) was altered by narrowing the type of evidence accepted from that which corroborated any evidence in the file to that which corroborated the death certificate. Compare M21-1, pt. VI, para. 5.25(b) (Sept. 21, 1992) (emphasis added), to wit: b. Evidence Essentially Complete. The provisions of 38 CFR 3.1000(d)(4) . . . provide for the acceptance of evidence after death for verifying or corroborating evidence 'in file' at death, with M21-1, pt. VI, para. 5.06(d) (May 8, 2000) (emphasis added), to wit: c. Evidence Essentially Complete. The provisions of 38 CFR 3.1000(d)(4) . . . provide[s] for acceptance of evidence (including uncertified statements) when considered in connection with the identifying, verifying, or corroborative effect of the death certificate. Although our co 5 ncurring colleague questions the propriety and necessity of our addressing paragraph 5.25(b) of the 1992 M21-1 and its successor paragraph 5.06(d) of the 2000 M21-1 in this case, we note that Mrs. Castellano raised the applicability of these provisions by arguing that the postdeath evidence she submitted should be considered under paragraph 5.25(b) of the 1992 M21-1. See Appellant's Brief at 11-12 (noting that the doctor's report serves to "corroborate and verify information in [Mr. Castellano's] file at the date of his death," citing Hayes's discussion of paragraph 5.25(b), and arguing that the nursing home records should also be considered part of the file). Moreover, this discussion illuminates the correct substantive law to be applied in further proceedings, given that, as we note infra at section III.A.3.b, Mrs. Castellano may present on remand evidence and argument in support of her position that the nursing home records should be considered in her claim pursuant to paragraph 5.06(d). 8 Although this was a substantive change, we note that – in contrast to paragraph 5.25(a), which makes no reference to a regulation or otherwise purports to be interpreting a regulation, see 67 Fed. Reg. 9,638 (Mar. 4, 2002) (proposed rule to amend § 3.1000(d)(4)) (noting that regulations prior "do not define the term 'evidence in the file'") – paragraph 5.25(b) explicitly purported to be implementing regulatory § 3.1000(d)(4), as did its successor provision of the M21-1, paragraph 5.06(d). Significantly, on its face, paragraph 5.25(b) plainly was inconsistent with § 3.1000(d)(4), which provided only for the acceptance of evidence for "identifying, verifying, or corroborative effect of the death certificate" (emphasis added), since at least 1972. Thus, the changes made in 2000 actually brought the language of paragraph 5.25(b) into conformance with regulatory § 3.1000(d)(4), the regulation that it explicitly purported to be implementing. Also of significance, the Court in Hayes never explicitly found the provisions of paragraph 5.25(b) to be substantive; rather, as noted above, the Court generally held that "[t]o the extent that these Manual provisions affect what post-date-of-death evidence may be considered, they have the force of law as they affect a substantive right." 4 Vet.App. at 360 (quoting Fugere, 1 Vet.App. at 107) (internal quotation marks omitted). Although the Court noted that paragraph 5.25(b) cited regulatory § 3.1000(d)(4), it never addressed whether paragraph 5.25(b) of the M21-1 could stand in direct contravention of the very regulation on which it purportedly rested. Moreover, to the extent there may have been any understanding at the time Hayes issued that the M21-1 could trump a regulation that it purports to explain, it has been clarified that a properly promulgated regulation trumps an M21-1 provision or other VA directive that plainly is erroneous or inconsistent with regulation. See Smith, Haas, and Fournier, all supra.6 As such, 6 Our concurring colleague takes issue with our interpretation of Smith, Haas, and Fournier. However, Smith states clearly that "VA interpretations of its own regulations in its Adjudication Procedures Manual [M21-1] are 'controlling' as long as they are not 'plainly erroneous or inconsistent with the regulation,'" 647 F.3d at 1385, and paragraph 5.25(b)clearly is an interpretation of regulation that plainly is inconsistent with that regulation. Similarly, in Haas, the Federal Circuit held that an M21-1 provision inconsistent with a regulation did "not confer any rights" on Mr. Haas because the Secretary's regulation was clear. 525 F.3d at at 1197; see also Fournier, 23 Vet.App. at 487 ("[Haas] indicated that when the Agency's interpretation of a statute is clear from existing regulations, any discrepancy between M21-1 and the regulations 'does not confer any rights' on a claimant."). Here, § 3.1000(d)(4) clearly provided for accepting evidence for the "corroborative effect of the death certificate," and paragraph 5.25(b) plainly was inconsistent with that language. Moreover, although our concurring colleague attempts to distinguish Haas by noting that the change in regulation in Haas postdated the M21-1 provision, Haas emphasized the regulation's clarity, not the regulation's date, as the key component in finding the M21-1 provision not binding. See 525 F.3d at 1197. 9 we conclude that Mrs. Castellano cannot rely on paragraph 5.25(b) of the 1992 M21-1 because it (1) plainly was inconsistent with the regulation that it purported to explain and (2) it was modified to comport with the regulation at the time she filed her claim. Therefore, paragraph 5.06(d) of the May 8, 2000, M21-1, not paragraph 5.25(b) of the 1992 M21-1, applies to Mrs. Castellano's claim. 3. The Board's Application of the Substantive Law a. June 2000 VA Medical Report In the decision on appeal, the Board found that the June 2000 VA medical report was not requested until after Mr. Castellano's death, was not prepared until after Mr. Castellano's death, and therefore could not be considered in the adjudication of Mrs. Castellano's accrued benefits claim. In its discussion, the Board referenced both paragraph 5.06(c) of the May 8, 2000, M21- 1, as well as the current version of 38 C.F.R. § 3.1000(d)(4) (2011), which was not in effect at the time Mrs. Castellano filed her claim. (1) Application of Paragraph 5.06(c) of the May 8, 2000, M21-1 In its application of paragraph 5.06(c), the Board clearly erred in finding that the June 2000 VA medical report did not constitute a VA-authorized report of treatment deemed included in the file at the date of death. See Butts v. Brown, 5 Vet.App. 532, 534 (1993) (en banc) (Court reviews findings of fact under the "clearly erroneous" standard); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is "clearly erroneous" when . . . the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))). There is no dispute on appeal that this report was authorized by VA; indeed, this was conceded at oral argument. It also is undisputed that the report reflects the VA doctor's treatment and examination assessment of the disabilities from which Mr. Castellano suffered before he died, and provides an opinion of the etiology of his disabilities, such that it constitutes a report of treatment. Although the Board found that the report was both requested and prepared after death, nothing in paragraph 5.06(c) (or its predecessor, paragraph 5.25(b) of the 1992 M21-1) supports a conclusion that such factors are a basis for excluding the report from being deemed in the file at date of death. At the time of Mrs. Castellano's claim, paragraph 5.06(c)'s sole requirements for the document to be deemed included in the file at date of death were that the document was 10 (1) a report of treatment, (2) authorized by the VA, and (3) reduced to writing. The provision did not mandate that the report be requested or prepared before death. Moreover, although the Secretary argues that a doctor's unrecorded thoughts on the date of a veteran's death cannot constitute a report in the file at date of death, the Secretary's argument is a red herring. The substantive law at the time Mrs. Castellano filed her claim did not address a doctor's unrecorded thoughts and the state of a potential report at the time of death. Rather, the substantive law permitted a VA-authorized report of treatment – no matter what form it took at the moment of the veteran's death – to be deemed included in the file once reduced to writing after death. This is the case here 7 with the June 2000 report of treatment, which, although not recorded until after the death of Mr. Castellano, was authorized by the Secretary to be written, and therefore authorized by the Secretary to be deemed in the file at the date of Mr. Castellano's death. (2) Application of § 3.1000(d)(4) (2011) In rendering its decision, the Board also applied § 3.1000(d)(4) (2011).8 This application was in error, however, because the regulation was not intended to be retroactive and its retroactive application has an impermissible retroactive effect. See 38 U.S.C. § 7261(a)(3) (Court shall hold unlawful conclusions of Board "not in accordance with law"). The current version of § 3.1000(d)(4) was promulgated on November 27, 2002 – more than two years after Mrs. Castellano filed her claim – and limits evidence in the file at date of death to that which was in VA's possession, to wit: 7 Our concurring colleague argues that this "holding appears to permit a VA report of treatment, that is requested and written many years after a veteran's death, to be deemed evidence in the file at the date of death." Post at 25. Our holding, however, simply restates what the Secretary authorized in paragraph 5.25(a) of the 1992 M21-1 (and its cosmetically changed version, paragraph 5.06(c) of the 2000 M21-1), to wit: if he authorizes VA to prepare a post-dateof- death medical report, it will be deemed in the file at the date of death. We further note that as of November 27, 2002, the Secretary promulgated a regulation limiting the evidence deemed in the file at the date of death to that "in VA's possession on or before the date of the beneficiary's death" (38 C.F.R. s 3.1000(d)(4) (2002); see 67 Fed. Reg. 65,707 (Oct. 28, 2002)), such that VA reports requested or written after death are no longer deemed part of the file on the date of death for accrued benefits claims. 8 Although our concurring colleague states that our analysis of the retroactive application of § 3.1000(d)(4) (2011) is unnecessary because "the Secretary has not maintained that the regulation applies retroactively," Post at 28, we note that he also has not maintained that it is not retroactive. Further, our review is of Board decisions, and the Board applied the regulation retroactively and considered it as a basis for not deeming the submitted evidence in the file at date of death (see R. at 11 (concluding that the "psychiatrist's report was not 'in VA's possession on or before the date of the beneficiary's death'" (quoting § 3.1000(d)(4) (2011))). See 38 U.S.C. § 7252; see also 38 U.S.C. § 7261(a)(3) (Court shall hold unlawful conclusions of Board "not in accordance with law"). 11 Evidence in the file at date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. Although there is no dispute that this regulation applies to all claims filed after November 27, 2002, see Hyatt, supra, applying the amended version of a regulation to an already pending claim is not "favored in the law" unless the Secretary expressly intends it to govern pending or prior claims, Rodriguez v. Peake, 511 F.3d 1147, 1152 (Fed. Cir. 2008) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 246 (1994)); see Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1362 (Fed. Cir. 2005) ("'[C]ongressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.'" (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988))); Ervin v. Shinseki, 24 Vet.App. 318, 323 (2011) (applying amended regulation to pending claim when Secretary's express intent was clear). With regard to any intention by the Secretary to apply this amendment retroactively to claims pending at the time the regulation was promulgated, none is evident in the promulgating documents or elsewhere, see 67 Fed. Reg. 9,638 (Mar. 4, 2002) (proposed rule to amend § 3.1000(d)(4) and remove provisions of VA Manual M21-1 inconsistent with amended § 3.1000(d)(4)); Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002) (final rule amending 38 C.F.R. § 3.1000(d)(4) and noting no comments submitted during notice-andcomment period), and the Secretary makes no such argument on appeal. To determine whether a regulation has an impermissible retroactive effect, we look to (1) the nature and extent of the change of the law, (2) the degree of connection between the operation of the new rule and a relevant past event, and (3) familiar considerations of fair notice, reasonable reliance, and settled expectations. Rodriguez, 511 F.3d at 1153 (citing Princess Cruises, 397 F.3d at 1362-63). Moreover, in the context of veterans claims and benefits, our analysis is guided by the dictates of fair process. See Thurber, 5 Vet.App. at 123. Evaluating the Princess Cruises factors, we conclude that applying amended regulatory § 3.1000(d)(4) in this instance has an impermissible retroactive effect. First, the extent of the change in the law is significant. As discussed above, previous to November 27, 2002, the substantive law regarding evidence in the file at date of death permitted VA-authorized reports 12 of treatment reduced to writing after death nevertheless to be deemed included in the file at date of death. This entitlement was eliminated by the 2002 amendment to § 3.1000(d)(4) (2002), limiting the evidence deemed included in the file at date of death to that which was in VA's possession at date of death. Apparent on its face, and as recognized by the Secretary when promulgating the regulation in 2002, the amendment effected a change in a longstanding policy, rather than explain or clarify an already existing policy. See 67 Fed. Reg. 65,707 (indicating that amended § 3.1000(d)(4) is a divergence from previous VA policy toward evidence in the file at date of death). This amendment was more than a clarification; it was a substantive and significant change that limited evidence that previously could have been considered when adjudicating an accrued benefits claim. Compare Princess Cruises, 397 F.3d at 1365 (finding that a "strong and unprecedented" evidentiary presumption previously not found in statute or regulation constitutes a significant change in law), with Rodriguez, 511 F.3d at 1154 (noting that clarification of an already existing policy does not constitute substantial change in the law). Second, the amended regulation is connected to a relevant past event. In addressing this element in Princess Cruises, the Federal Circuit noted that a recent U.S. Customs and Border Protection ruling created an evidentiary presumption that could only be overcome by data that had not been – and could no longer be – collected by the cruise line; thus, the presumption could not be overcome in that instance and was connected to a relevant past event. 397 F.3d at 1360- 66. Here, Mrs. Castellano filed her claim and obtained the VA-authorized report when VA reports of treatment recorded after death still could be deemed in the file at date of death – prior to the regulation change in 2002. Similar to the situation in Princess Cruises, in Mrs. Castellano's case, an amended regulation created an evidentiary rule that cannot be overcome, because Mrs. Castellano cannot return to the time before her husband's death and submit the report to the Secretary, as the amended regulation now requires. In other words, had she known about a future rule change that would be applied retroactively to exclude evidence obtained after her husband's death, she and her husband could have acted differently by obtaining the report before her husband's death. See Tarver v. Shinseki, 557 F.3d 1371, 1375 (Fed. Cir. 2009) (addressing whether claimant would have acted differently had she known about the rule change). 13 Moreover, the change in law particularly is relevant to a past event – the collection of evidence before Mr. Castellano's death (or lack thereof) – because the Secretary (who amended the regulation) bears partial responsibility in collecting relevant evidence pursuant to the duty to assist. Indeed, it would exceed the bounds of fairness due a veteran to permit the Board's retroactive enforcement of an evidentiary standard that excludes certain evidence from consideration when the Secretary did not declare the regulation change to be retroactive when it was promulgated, and the Secretary otherwise did not timely collect the evidence necessary to surmount the retroactive evidentiary standard. Ultimately, because the evidence can no longer be collected in a way that would surmount the retroactive evidentiary standard, that collection opportunity is a relevant past event connected to the amended regulation. See id. (taking into account "equitable considerations such as the posture of the case and the extent to which the parties have relied to their prejudice on the superseded rule" in evaluating whether there is a connection to a relevant past event). We further note the stark difference between the facts in this case and the facts in Rodriguez, 511 F.3d at 1156, that led the Federal Circuit in that case to permit retroactive application of a change in regulation. In Rodriguez, when considering whether the change in regulation was connected to a relevant past event, the Federal Circuit explicitly noted that Mrs. Rodriguez had filed her claim prior to the caselaw that interpreted a statute in a manner favorable to Mrs. Rodriguez, such that Mrs. Rodriguez had not relied on the favorable interpretation when she filed her claim. Id. at 1155 ("Rodriguez did not rely to her detriment on the prior state of the law."). In that circumstance, the change in regulation reversing the effect of that caselaw was not related to a past event. Id. Here, as noted, Mrs. Castellano filed her claim and obtained the report when she was entitled by substantive law to have VA-authorized reports deemed included in the file at date of death. It is only the possible retroactive effect of later change in regulation that might preclude consideration of this report in adjudicating Mrs. Castellano's claim. Third, considering fair notice, reasonable reliance, and settled expectations, the Secretary posited one policy toward evidence in the file at the date of death from at least 1985 to 2002, and this Court found it to be substantive law. See Tarver, 557 F.3d at 1376 (examining Secretary's historic practice in evaluating settled expectations). Mrs. Castellano reasonably relied on that 14 law in gathering evidence for her claim and, after the Secretary first provided notice of a significantly different law on March 4, 2002, see 67 Fed. Reg. 9638, well after Mrs. Castellano filed her claim, there was nothing further she could do to have her evidence admitted. See Princess Cruises, 397 F.3d at 1366 ("[T]he imposition of an evidentiary [rule] that cannot possibly be met strongly implicates fairness considerations."). The Secretary's consistent past practice is unlike the situation in Rodriguez, 511 F.3d at 1156, where a claimant could not have settled expectations of a law because it had undergone "multiple changes." 511 F.3d at 1156. Accordingly, to the extent the Board rejected consideration of the June 2000 VA medical report based on the application of amended § 3.1000(d)(4), such application had an impermissibly retroactive effect. Overall, remand is warranted for the Board to consider this report in the adjudication of Mrs. Castellano's claim for accrued benefits. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (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"); Webster v. Derwinski, 1 Vet.App. 155, 159 (1991) (Court is not to conduct de novo factfinding but rather to remand the matter for the Board to find facts in the first instance). b. Private Nursing Home Records The Board found that the private nursing home records postdated the period of care authorized by VA, and Mrs. Castellano does not demonstrate – nor does the record of proceedings reflect – clear error in that finding. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant has burden of demonstrating error); Butts and Gilbert, both supra. Accordingly, these records postdating VA-authorized care could not be deemed in the file at date of death under paragraph 5.06(c) of the May 8, 2000, M21-1. As to whether the records might be admissible under paragraph 5.06(d) of the May 8, 2000, M21-1 because they identify, verify, or corroborate the death certificate, the Secretary generally notes that Mrs. Castellano fails to establish the relevance of these records to her claim. However, the Board failed to address whether these records could be considered under subsection (d) and, in light of the need to remand for consideration of the June 2000 VA medical report and pursuant to the general rule that a claimant may submit new argument and evidence on remand, Mrs. Castellano will have an opportunity on remand to establish the relevancy of 15 these private records. If so presented, the Board must discuss the issue. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (on remand, Board must consider any additional evidence and argument that the claimant presents in support of the matters remanded). B. Stegall and Substantial Compliance on Remand Mrs. Castellano also contends that the July 2009 Board violated its Stegall duty to readjudicate her claim when it last was remanded by the Court pursuant to a JMR. See Stegall, 11 Vet.App. at 271 ("[A] remand by this Court to the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders."). More specifically, she argues that the reasons or bases in the July 2009 Board decision improperly replicated the reasons or bases of the December 2007 Board decision, which was vacated entirely by the December 2008 Court order pursuant to JMR. As we consistently have stated, the Board's duty upon remand is to consider any additional evidence and argument that the claimant presents on remand. Kay, supra. This duty applies to all matters remanded, regardless of whether they were the explicit bases for the remand. Moreover, the Board's duty on remand is not tied to whether the Board decision on appeal was set aside or vacated by the Court. See Leopoldo v. Brown, 4 Vet.App. 216, 219(1993) (remanding without vacating or setting aside Board decision, and noting that "appellant is free . . . to offer additional evidence" on remand); Ohland v. Derwinski, 1 Vet.App. 147, 150(1991) (remanding without vacating or setting aside the Board decision); Sammarco v. Derwinski, 1 Vet.App. 111, 114 (1991) (same). Although it is best practice for the Board explicitly to note and specifically respond to each additional argument raised on remand, the Board sufficiently meets its duty under Kay when it adequately addresses the issues raised. See D'Aries v. Peake, 22 Vet.App. 97, 105(2008) (substantial compliance, not strict compliance, is required under Stegall); Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (finding substantial compliance with remand order where, although examiner failed to presume exposure to asbestos, he "ultimately ma[d]e a determination as to whether asbestos contributed to [the claimant's] disability"); see also 38 U.S.C. § 7104(d)(1) (Board must adequately address "all material issues of fact and law presented on the record" (emphasis added)). Compare BLACK'S LAW DICTIONARY 907 (9th ed. 2009) [hereinafter BLACK'S] (defining "issue" as a "question of law or fact" or both), with BLACK'S at 16 121 (defining "argument" as a "statement that attempts to persuade"). Further, if a claimant presents no new arguments on a remanded matter or merely recycles old arguments, there is no requirement that the Board employ different words to restate its decision. Rather, if the Board reconsiders the evidence and decides to reinstate its previous determination on a matter, it may replicate the language it employed previously. Here, as Mrs. Castellano notes, the July 2009 Board newly addressed the issue of the June 26, 2000, VA doctor's letter and whether it could be deemed in the file at date of death pursuant to § 3.1000(d)(4) (2011), but the July 2009 Board decision on appeal otherwise largely replicated the reasons or bases in the December 2007 Board decision. Mrs. Castellano also correctly notes that she submitted additional written argument on the matters remanded that was not specifically addressed by the July 2009 Board in its statement. Although the Board did not specifically address much of the written argument she submitted, the written argument is contained in the record and the Board is presumed to have considered it. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (absent specific evidence indicating otherwise, there is a presumption that the Board considers all evidence of record). Moreover, although the July 2009 Board largely recycled the statement of the 2007 Board, the statement nevertheless addresses the very issues that Mrs. Castellano addressed in her additional written argument. Thus, for example, Mrs. Castellano argues that the 2009 Board did not address her argument that more probative weight should be granted to the VA chief psychiatrist's April 1999 opinion because of the doctor's status as chief psychiatrist and personal physician. Although the 2009 Board did not respond specifically as to the value of the doctor's status in its probative weight analysis, the Board addressed the probative value of the opinion vis-a-vis the other medical opinions and provided an adequate statement of reasons or bases for its assignment of weight to various opinions, which reflects an adequate discussion of the issue raised by Mrs. Castellano. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) ("It is not error for the [Board] to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons [or] bases."); see also Allday v. Brown, 7 Vet.App. 517, 527(1995) (Board's statement "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). In sum, Mrs. Castellano fails to show by specific evidence that the Board did not consider her written arguments, and 17 fails to demonstrate that the Board's statement of reasons or bases is not understandable or in some way frustrates judicial review. See Newhouse, Hilkert and Allday, all supra. C. Alzheimer's Disease Mrs. Castellano further argues that the Board erred in finding Mr. Castellano's Alzheimer's disease not aggravated by his service-connected anxiety disorder. In support of its decision, the Board noted, inter alia, that (1) a February 1996 medical report stated that Mr. Castellano's Alzheimer's brought out his psychiatric symptoms, but did not state that his psychiatric symptoms brought out his Alzheimer's, (2) an April 1996 medical report stated that Mr. Castellano's neuroses complicated his organic (personality) disorder and treatment, but did not state that the neuroses complicated Alzheimer's, (3) an April 1999 medical report stated that Mr. Castellano's psychiatric problems impacted his Alzheimer's, but such a statement was inconsistent with the earlier statement of the examiner in April 1996, and (4) a December 1999 medical report stated that anxiety does not cause Alzheimer's, and, although it also stated that anxiety can contribute to impaired functioning in individuals with Alzheimer's, "can" also implies "can not." However, because the June 26, 2000, medical report may alter the Board's determination on this issue, remand is warranted. See Arneson v. Shinseki, 24 Vet.App. 379, 389 (2011) (remand warranted where error could have altered Board's determinations). D. Bipolar Disorder Mrs. Castellano further argues that the Board erred in finding that Mr. Castellano had no bipolar disorder. Succinctly stated, remand is warranted for the Board to consider the June 26, 2000, medical report in its determination as to whether service connection for bipolar disorder or a higher rating for Mr. Castellano's mental condition is warranted. See Arneson, supra. E. SMC and TDIU Because they are inextricably intertwined with the remanded matters, the issues of SMC and TDIU also will be remanded. Cf. Tyrues v. Shinseki, 23 Vet.App. 166, 178-79 (2009)(remand generally appropriate when matter on appeal is "inextricably intertwined" with matters being adjudicated below), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2011). 18 F. Remand On remand, Mrs. Castellano may present, and the Board must consider, any additional argument in support of the matters remanded. See Kay, supra. These matters are to be provided expeditious treatment on remand in accordance with 38 U.S.C. § 7112. IV. CONCLUSION That part of the July 7, 2009, Board decision on appeal is SET ASIDE and the matters are REMANDED for further adjudication consistent with this opinion. .SCHOELEN, Judge, concurring: Although I fully agree with the majority that the Board decision should be vacated and the matter remanded for consideration of the June 26, 2000, VA medical report as "evidence in the file" at the time of the death of the veteran, Frederick C. Castellano, I write separately to address several concerns, including my disagreement with the majority's attempt, although through dicta, to deem Hayes v. Brown, 4 Vet.App. 353 (1993) overruled. A. Evidence in the File at Date of Death Pursuant to 38 U.S.C. § 5121(a), a veteran's surviving spouse may receive accrued benefits consisting of "periodic monetary benefits . . . to which [the veteran] was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death . . . and due and unpaid." 38 U.S.C. § 5121(a) (emphasis added). In Hayes, the Court noted that although section 5121(a) permits only evidence in the file at date of death, section 5121(c) "appear[ed] to contradict, or at least qualify, that provision" by permitting a claimant to submit information to complete the application. 4 Vet.App. at 360. Given this ambiguity, the Court stated that "the Secretary ha[d] wide latitude in establishing department policy as to what postdate- of-death evidence may be considered." Id. Noting that the regulatory framework established to implement section 5121(a), (c) was "confusing at best," see 38 C.F.R. § 3.1000(d)(4)(i)(1992),9 the Court nevertheless stated that it was "clear" that § 3.1000(d)(4), "on 9 In 1992, the Secretary's regulation, provided as follows: (4) Evidence in the file at date of death . . . will be considered to have been met when there is on file at the date of the veteran's death: (i) Notwithstanding § 3.200(b) evidence, including uncertified statements, which is essentially 19 its face, applie[d] only to evidence in the file at date of death and the death certificate and, d[id] not, by its terms contemplate the submission of any post-death evidence."10 Id. at 358. However, the Court also recognized that "[s]uperimposed on this regulation . . . [wa]s a confusing array of provisions of the VA Manual, M21-1 . . . scattered amongst two chapters, regarding what post-date-of-death evidence [wa]s acceptable." Id. at 360 (citing VA Manual, M21-1, paras. 5.25, 27.08). The Court held that "[t]o the extent that these Manual provisions affect what post-date-of-death evidence may be considered, they have '"the force of law" . . . [as they affect] a substantive right [of appellant to accrued benefits,] and . . . placement in a procedural [M]anual cannot disguise [the] true nature [of these provisions] as . . . substantive rule[s].'" Id. (quoting Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990)). What is clear from the Court's decision in Hayes, is that both 1992 M21-1 provisions discussed by the majority, M21-1, part VI, para. 5.25(a), (b) (1992), were found to be "substantive rules," creating substantive rights, because they affected what post-date-of-death evidence could be considered under § 5121(a). Thus, absent adherence to the APA notice-andcomment process and specific notice to the public of intent to revoke these substantive provisions, neither provision could be overturned. Fugere, 1 Vet.App. at 109-10 (setting aside the Secretary's rescission of an M21-1 provision for failing to follow the APA notice-andcomment process), aff'd, 972 F.2d 331 (Fed. Cir. 1992). As relevant to this appeal, paragraph 5.25(a) provided that "[e]vidence 'in file' includes . . . ['[r]eports of hospitalization, treatment or examinations authorized by VA'], even if such reports are not reduced to writing or are not physically placed in file until after death. M21- 1, pt. VI, para. 5.25(a) (1992). Paragraph 5.25(b), entitled "[e]vidence [e]ssentially [c]omplete," provided that [t]he provisions of 38 C.F.R. § 3.1000(d)(4) permit favorable action under 38 U.S.C. § 5121 on the basis of the evidence as a whole when the evidence is complete and of such weight as to establish service connection or degree of disability for disease or injury when substantiated by other evidence in file at date of death or when considered in connection with the identifying, verifying, or corroborative effect of the death certificate. 38 C.F.R. § 3.1000(d)(4)(i) (1992). 10 Contrary to the majority's view, the Court in Hayes explicitly stated that "the exceptions provided for by ¶ 5.25(a), (b) are not set forth in . . . § 3.1000(d)(4)" and, therefore, did consider whether para. 5.25(a) and (b) could stand in direct contravention of the regulation. Id. at 360; see section III.A.2.b, ante at 9. 20 essentially complete and in file at the time of death. . . . The cited regulations also provide for the acceptance of evidence after death for verifying or corroborating evidence "in file" at death. M21-1, pt. VI, para. 5.25(b) (1992). Because paragraph 5.25(b) explicitly referenced the Secretary's regulation, and paragraph 5.25(a) did not, my colleagues state that paragraph 5.25(a) does not "purport[] to be interpreting a regulation." See section III.A.2.b, ante at 9. In addition, because they perceive paragraph 5.25(b) to directly conflict with the Secretary's pre-2002 regulation, they conclude that the Secretary was permitted to amend the M21-1 provision without adhering to the notice and comment process. They assert that since Hayes issued, "it has been clarified that a properly promulgated regulation trumps an M21-1 provision or other VA directive that plainly is erroneous or inconsistent with regulation." Section III.A.2.b, ante at 9 (citing Smith v. Shinseki, 647 F.3d 1380 (Fed. Cir. 2011) and Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008). I disagree with the majority's classification of the two Manual M21-1 paragraphs because it is clear to me that both paragraph 5.25(a) and paragraph 5.25(b) reflect the Secretary's determination regarding what post-date-of-death evidence is to be considered "evidence in the file."11 That paragraph 5.25(b) mentioned the regulation, and paragraph 5.25(a) did not, does not alter the fact that both paragraphs represented the Secretary's interpretation of 38 U.S.C. § 5121 and the evidentiary requirements for an accrued benefits claim, which the Secretary has conceded he had failed to establish by regulation until the 2002 regulatory change. The Secretary stated in his 2002 notice of proposed rulemaking that the then-current version of 38 C.F.R. § 3.1000(d)(4) failed to define the term "'evidence in the file'" but instead permitted VA "in certain instances . . . [to] accept identifying, corroborating[,] or verifying information from the death certificate and evidence submitted with the claim for accrued benefits to support prima facie evidence already in the file." See Evidence for Accrued Benefits, 67 Fed. Reg. 9638, 9639 (Mar. 4, 2002) (emphasis added). Moreover, the Federal Circuit's recent discussion of Hayes in Hyatt v. Shinseki recognized this Court's "perceived conflict between subsections (a) and (c) of § 5121" and that VA clarified this "confusion" by regulation in 2002. 566 F.3d 1364, 11 Indeed the plain language of paragraph 5.25(a) reveals that it is the Secretary's interpretation of what constitutes "evidence in the file." It states: "Evidence in File at Date of Death. Evidence 'in file' includes the following . . . ." M21- 1, pt. VI, para. 5.25(a) (emphasis added); see also M21-1, pt. VI, para. 5.23 (1992) (stating that "[e]ntitlment to [accrued benefits] must be based on evidence in file at date of death" and referencing para. 5.25(a)). 21 1370 (Fed. Cir. 2009) (citing Evidence for Accrued Benefits, 67 Fed. Reg. 9638, 9639 (Mar. 4, 2002); Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002)). Thus, I believe that until 2002, when the Secretary formally published his intent to delete from the M21-1 those provisions that were inconsistent with his proposed definition of "evidence in the file at the date of death," both paragraph 5.25(a) and paragraph 5.25(b) remained valid substantive rules, which were applicable to the appellant's claim for accrued benefits filed in June 2000. I also disagree with the majority's reliance on Smith, Haas, and Fournier v. Shinseki, 23 Vet.App. 480, 487-88 (2010), for the proposition that "a properly promulgated regulation trumps an M21-1 provision . . . that plainly is erroneous or inconsistent with regulation." See section III.A.1, ante at 6. Although it is true that the Federal Circuit concluded that Mr. Haas could not rely on a 1991 M21-1 provision that was inconsistent with the Secretary's regulation – Haas is distinguishable because the Secretary's regulation, which was promulgated after a notice-and-comment process, went into effect in July 2001, one month before Mr. Haas filed his claim for disability compensation benefits. 525 F.3d at 1196. Because the Secretary had "formally taken a position that excluded Mr. Haas from the scope of the regulation" before his claim was filed, the Federal Circuit concluded that (1) Mr. Haas could not rely on the 1991 M21-1 provision, which was inconsistent with the later regulation, and (2) it was unnecessary for the Agency to conduct parallel rulemaking to amend the Agency's "interpretative statement" contained in the M21-1. Id. at 1196-97. Unlike the regulation in Haas, which was formally promulgated after the M21-1 provision had already been in effect, the pre-2002 version of 38 C.F.R. § 3.1000(d)(4) had been in effect since at least 1970, thus pre-dating the M21-1 provision at issue here, and, as acknowledged by the Secretary in his 2002 notice of proposed rulemaking, failed to give meaning to "evidence in the file at the date of death" and the ambiguity created by 38 U.S.C. § 5121(a), (c). See 38 C.F.R. § 3.1000(d)(4) (1970); 67 Fed. Reg. at 9639. As discussed earlier, the Court in Hayes recognized the ambiguity and confusion surrounding what constituted "evidence in the file at date of death" and held that, to the extent paragraph 5.25 "affected what post-date-of-death evidence may be considered" it had the "'force of law'" and created a "substantive right." Hayes, 4 Vet.App. at 360. In this circumstance, VA's regulation, which had 22 been effect since at least 1970, cannot "trump," or otherwise invalidate, a subsequently created "substantive right." The majority's reliance on Smith and Fournier, both supra, is similarly misplaced because neither case involved a Manual M21-1 provision that created a substantive right. See Smith, 647 F.3d at 1384-85 (noting that VA's interpretative statement contained in its adjudication Manual was consistent with VA's TDIU regulation, which did not require the agency to consider the availability of work when determining entitlement to TDIU); Fournier, 23 Vet.App. at 487 (holding that the Manual M21-1 provision at issue did "not establish or alter the criteria for benefits but only illuminates a suggested procedural practice for VA adjudicators"). In Fournier, the Court also discussed the Federal Circuit's decision in Haas as indicating that "when an Agency's interpretation of a statute is clear from existing regulations, any discrepancy between M21-1 and the regulation 'does not confer any rights' on a claimant." 23 Vet.App. at 487 (2010) (emphasis added). As noted above, prior to 2002, the Secretary's interpretation of his statutory authority was anything but clear. See Hyatt, 566 F.3d at 1370; cf. Hayes, 4 Vet.App. at 361 (stating that "VA, at the earliest possible opportunity, may wish to clarify its policy as to what evidence submitted after death may be considered"); 67 Fed. Reg. at 9639. For these reasons, I cannot agree with my colleagues' conclusion that the May 8, 2000, amendments to paragraph 5.25(b) were properly effectuated without adherence to the APA notice-and-comment process. Rather, I would conclude that the 1992 M21-1 provisions, specifically paragraph 5.25(a) and paragraph 5.25(b), remained valid substantive rules in accordance with the Court's decision in Hayes until 2002 when VA formally rescinded its Manual M21-1 provisions as "inconsistent" with the 2002 amendment to 38 C.F.R. § 3.1000(d)(4). See 67 Fed. Reg. at 9640, 65,707. In addition to noting my fundamental disagreement with the majority's analysis on this point, I would be remiss if I neglected to point out that the majority's discussion concerning paragraph 5.25(b) is not necessary to its decision and, therefore, in my opinion, amounts to nothing more than dicta. See BLACK'S LAW DICTIONARY 465 (7th ed. 1999) (defining "judicial dicta" as "[a]n opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision"); see also 23 Pelegrini v. Principi, 18 Vet.App. 112, 130 (2004) (Ivers, J., concurring in part and dissenting in part) (noting that "'[t]he danger of . . . dicta is that, although theoretically and technically not binding, practically, they give the appearance of carrying the cloak of judicial acceptance'"(quoting Lasovick v. Brown, 6 Vet.App. 141, 153 (1994)). Simply put, once my colleagues concluded that the Board clearly erred when it determined that the June 2000 report did not constitute a "VA-authorized report of treatment" such that it was error not to deem the report "evidence in the file at date of death," it was unnecessary to consider, only to reject, the appellant's alternative argument that the report should be considered because it serves to "summarize, corroborate[,] and verify evidence in file at the date of his death." Appellant's Brief (Br.) at 11-13 (citing Hayes, 4 Vet.App. at 360-61 and noting that the Board failed to address this argument). Because discussion of paragraph 5.25(b) was not essential to the Court's disposition, it is axiomatic that the majority's "holding" that Smith and Haas overturned Hayes is not binding. To the extent that the majority relies on its analysis of the Secretary's May 2000 change to paragraph 5.25(b), see M21-1, pt. VI, para. 5.06(d) (Change 73 - May 8, 2000) (stating that "[t]he cited regulation provides for the acceptance of evidence . . . when considered in connection with the identifying, verifying, or corroborative effect of the death certificate"), to remand the question whether the veteran's private nursing home records may be deemed evidence in the file at the date of death pursuant to paragraph 5.06(d), I also note that this argument was not raised by the parties. Instead, the appellant argued that the nursing home records were "treatment records created prior to the veteran's death and it is entirely unclear why such relevant treatment records were not considered part of the veteran's file." Appellant's Br. at 12 n.6 (citing Hayes, 4 Vet.App. at 360-61, for the proposition that "hospitalization and treatment records may be considered constructively part of the veteran's file on the date of death for the purposes of adjudicating an accrued benefits claims even if not placed in the veteran's file prior to death"). The Board's reasons were unclear because the Board summarily stated that "records from Silver Ridge Village outside the period for which VA authorized and contracted for treatment at that facility . . . cannot be considered in the context of the . . . appeal." R. at 8(emphasis added). I do not believe that the appellant's "reasons or bases" allegation of error reasonably raised any alternative basis for consideration of the records outside the authorized 24 period, and as argued by the Secretary, the appellant has not identified any record that the Board purportedly failed to consider that weighs in favor of her claim. Secretary's Br. at 16-17. The majority's discussion in this regard can only be viewed as a misguided attempt to render its discussion of paragraphs 5.25(b) (1992) and 5.06(d) (2000) relevant and essential to the Court's disposition in order to reach a desired result – deeming Hayes overruled. B. The Majority's Review of the Board's Findings As noted above, I agree that the June 26, 2000, report should be deemed evidence in the file at the time of the veteran's death and that this matter should be remanded to the Board for consideration of the report. I also agree that the basis for admitting the report is, as conceded by the parties, that it constitutes a VA-authorized report of treatment. However, I write separately on this point to express my concern regarding the majority's broad interpretation of the Secretary's M21-1 provision, which permitted "[r]eports of hospitalization, treatment[,] or examinations authorized by VA" to be considered "evidence 'in file' . . . even if such reports are not reduced to writing or are not physically placed in file until after death." M21-1, pt. VI, para. 5.25(a) (1992); see also M21-1, pt. VI, para. 5.06(c) (Change 73 - May 8, 2000). My concern is that my colleagues' conclusion that a VA-authorized report of treatment may be deemed evidence in the file, "no matter what form it took at the moment of the veteran's death," section III.A.3.a.(1), ante at 11, may suffer from the law of unintended consequences. That is, although it may not seem unreasonable, under the facts of this case, to deem a VA report of treatment that is reduced to writing five weeks after the veteran's death evidence in the file, the majority's holding appears to permit a VA report of treatment, that is requested and written many years after a veteran's death, to be deemed evidence in the file at the date of death. Such a broad interpretation of the Secretary's Manual M21-1 may have the unintended effect of opening Pandora's box, possibly leading to a development of evidence in an accrued benefits claim that is not contemplated by statute. My concerns are augmented by the fact that the Secretary's current Manual M21-1 contains a similar provision that requires VA reports of hospitalization, examination, or treatment to be placed in the claims file "even if they are not reduced to writing . . . until after death," and therefore, the majority's holding may not be limited only to those cases that have been pending prior to the Secretary's 2002 amendment to 38 C.F.R. § 3.1000(d) and rescission of paragraph 5.06(c). See M21-1MR, pt. VIII, chs. 3, 1.f (2010). 25 Rather than broadly construe the Secretary's Manual M21-1 provision, I would have reviewed the Board's factual findings concerning when the report was requested and prepared and concluded that the Board clearly erred when it failed to afford the appellant the benefit of the doubt. See 38 U.S.C. § 5107(b) ("When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant."); Mariano v. Principi, 17 Vet.App. 305, 313 (2003) (the Court reviews the Board's application of the benefit of the doubt rule under the "clearly erroneous" standard); 38 C.F.R. § 3.102 (2011) ("When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant."). In short, I agree with the appellant that the Board's conclusions concerning the preparation of the report are highly speculative and are not based on any affirmative evidence in the record. In its decision, the Board found that the June 2000 treatment report was not requested or prepared prior to the veteran's death and, therefore, concluded that it could not be considered as part of the accrued benefits claim. The Board observed that the veteran died on May 18, 2000, and that the report, dated June 26, 2000, indicated that it was prepared at the request of the veteran's wife and veteran's service representative (VSR). The Board also acknowledged that the report was written in the present tense, which indicated that the physician thought the veteran was still alive. The Board stated that there was no evidence to indicate when the psychiatrist prepared the report, but expounded that assuming the veteran's wife requested the report, it was "highly unlikely" that the psychiatrist would have been asked to prepare the report prior to the veteran's death and have waited more than five weeks to reduce it to writing. R. at 10. Thus, the Board concluded that the benefit of the doubt was "not implicate[d]" in the absence of any evidence that the psychiatrist prepared the report before the veteran died. Id. To the extent the VSR may have requested the report, the Board stated that "it is reasonable to assume that the VSR would have delayed the [June 15, 2000, hearing] until the psychiatrist's report was received," had it been requested before the veteran's death. Id. (emphasis added). Based on the foregoing, the Board found that "the VA psychiatrist's June 2000 report was not requested until after the representative's Informal Hearing Presentation, 26 dated June 15, 2000 – almost one month after the Veteran had died – and so, a fortiori, the psychiatrist's report could not have been prepared prior to his death." R. at 11. "The Board's task [is] to make findings based on evidence of record – not to supply missing facts." Beaty v. Brown, 6 Vet.App. 532, 536-37 (1994) (holding that the Board's finding that "'with eye protection, these occupations ["farmwork and heavy equipment operation"] would still be feasible' ha[d] no evidentiary basis in the record" and was clearly erroneous); see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that the Board clearly erred when it relied on its own medical speculation and noting that "[b]are assertions without identifying the underlying factual basis for the conclusion are not sufficient"). In this case, what is clear from the face of the report is that it is dated June 26, 2000, five weeks after the veteran's death, and that the veteran's wife and VSR requested the report. However, the fact that the report postdates the veteran's death is not dispositive because the Secretary's Manual M21-1 provision clearly contemplates that evidence may be deemed in the file even though it is not reduced to writing until after death. Thus, as conceded by the Board, it is "possible" that the report was "prepared" prior to the veteran's death, but not reduced to writing until after death. R. at 10. This possibility is bolstered by the fact that the VA doctor repeatedly referred to the veteran in the present tense, strongly suggesting that the physician believed that the veteran was alive when the report was prepared. See, e.g., R. at 333 ("The patient's current GAF (Global Assessment of Functioning) is scored as 25.") and ("The patient is totally and permanently disabled and now requires total nursing home care for supervision of his basic activities for daily living. He may benefit from the use of medications to control his emotional outbursts, confusion and disorientation. His prognosis is guarded.") (emphasis added). On the other hand, there is no factual basis in the record to support the Board's conjecture that it is "highly unlikely" that it would take the physician more than five weeks to reduce a report to writing nor is there any basis for the Board's assumptions as to the VSR's thought process in preparing for and submitting an informal hearing presentation on June 15, 2000.Once we remove the Board's speculative determinations concerning the timing of the preparation of the report and consider the evidence in the record, it is clear that the Board erred when it found that the benefit of the doubt was "not implicated." This is precisely the scenario in which the determination as to when the report was prepared is "too close to call" and the benefit 27 of the doubt should have been afforded to the appellant. See generally Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001) ("[T]he benefit of the doubt rule may be viewed as shifting the 'risk of nonpersuasion' onto the VA to prove that the veteran is not entitled to benefits."). Thus, I would have concluded that the Board clearly erred when it failed to afford the appellant the benefit of the doubt to conclude that the VA psychiatrist prepared the report prior to the veteran's death and, therefore, the report should be deemed "evidence in the file" even though it was not reduced to writing until after the veteran's death. C. Retroactive Application of 38 C.F.R. § 3.1000(d)(4) The majority holds that the Board's application of § 3.1000(d)(4) was erroneous "because the regulation was not intended to be retroactive and its retroactive application has an impermissible retroactive effect." Section III.A.3.a.2, ante at 11. Although I generally agree that the Secretary's 2002 amendment to § 3.1000 was not intended to apply retroactively and that any such application would have an impermissible retroactive effect, I do not agree with the majority's analysis of the Princess Cruises factors. See section III.A.3.a.2, ante at 11-15; Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1362-63 (Fed. Cir. 2005). I also do not believe that my colleagues' Princess Cruises analysis is necessary to the Court's disposition because the Secretary has not maintained that the regulation applies retroactively. See generally Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002) (indicating that the Secretary's amendment to § 3.1000 is effective "November 27, 2002"); Secretary's Br. at 14-15(citing 38 C.F.R. § 3.1000 (1999) as the applicable version of the regulation). Assuming the Board applied the current version of the regulation, I agree that such application was erroneous. Accordingly, for the foregoing reasons, I concur in the result reached by the Court, but must respectfully disagree with those portions of the majority's opinion discussed above. The Board's decision should be vacated and the matter remanded for the Board to consider the June 26, 2000, VA medical report. 28