Bowen v. Shinseki, No. 10-2975 (Argued April, 11, 2012); 38 CFR.155(a)(2011);DiCarlo v. Nicholson, 20Vet.App.52, 56-57(2006)

Except from decision below: "Indeed, Mr. Bowen's briefing to the Court may constitute such a request that the Secretary should discuss with Mr. Bowen and be prepared to proceed to adjudicate. See Landicho v. Brown, 7 Vet.App. 42, 50 (1994) (noting that filings at the Court may be sufficient indication of intent to file a claim); 38 C.F.R. § 3.155(a) (2011) (requiring the Secretary to provide an application form upon receipt of an informal claim); see also DiCarlo v. Nicholson, 20 Vet.App. 52, 56-57 (2006) (advising the appellant to ask the Secretary to adjudicate an unadjudicated claim in the first instance and seek relief from the Court only if the Secretary refuses to process the request)." ---------------------------------------------------- UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2975 JERROLD C. BOWEN, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Argued April, 11, 2012 Daniel J. Neilsen, of Seattle, Washington, for the appellant. Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; Nisha C. Wagle, Deputy Assistant General Counsel; and Jesse B. Greenstein, all of Washington, D.C., for the appellee. Before KASOLD, Chief Judge, and DAVIS and SCHOELEN, Judges. KASOLD, Chief Judge: Vietnam and Persian Gulf war veteran Jerrold C. Bowen appeals through counsel an August 11, 2010, decision of the Board of Veterans' Appeals (Board) that denied a request to reopen a claim for benefits for muscular dystrophy because he had not submitted new and material evidence. Mr. Bowen argues that he was denied Due Process when the regional office (RO) mailed his hearing notice to an incorrect address, and that the Board erred by not considering whether he raised an allegation that his 1994 rating decision was the product of clear and unmistakable error (CUE). The Secretary does not dispute that Mr. Bowen effectively was denied a hearing by the RO through an inadvertent administrative error but argues that Mr. Bowen was not denied Due Process and that the error was not prejudicial. The Secretary also argues that the Board did not have jurisdiction over any assertion by Mr. Bowen that the 1994 rating decision contained CUE and therefore the Court lacks jurisdiction over that matter. For the reasons set forth below, the decision of the Board will be affirmed. Decided June 29, 2012) I. FACTS Mr. Previous HitBowenNext Hit filed a claim with the RO in June 2007, stating that he "wish[ed] to file a claim for service connection for PTSD and muscular dystrophy." R. at 211. Despite a 1994 RO decision that denied Mr. Bowen's claim for muscular dystrophy because it was not service connected, the RO initially treated Mr. Bowen's 2007 claim as an "application for service- connected compensation." R. at 165. In November 2007, however, the claim was reclassified as a claim to reopen the 1994 RO decision based on new and material evidence. The claim was denied in a July 8, 2008, rating decision because Mr. Previous HitBowenNext Hit had not submitted new and material evidence. Mr. Previous HitBowenNext Hit filed a Notice of Disagreement (NOD) stating that he disagreed with the decision " which denie[d] service connection for muscular dystrophy." R. at 108. A Statement of the Case was issued in October 2008, continuing the denial of Mr. Bowen's claim and informing Mr. Previous HitBowenNext Hit of his right to a hearing. Pursuant to Mr. Bowen's request for a hearing, one was scheduled, but notice was sent to an outdated address and Mr. Previous HitBowenNext Hit did not appear at the scheduled hearing. In November 2009, Mr. Bowen's accredited representative submitted an argument noting that the issue was whether "evidence is material to service connection formusculardystrophy,"andcontendingthatMr.Previous HitBowenNext Hit"believeshis condition wasaggravated[by] his active duty as documented in his treatment records from the [P]residio, San Francisco, CA." R. at 31. Mr. Bowen's appeal was certified to the Board on December 23, 2009, and he was informed that he could (1) personally appear before the Board, (2) send the Board additional information, and (3)appointarepresentativeor change his representative. Mr. Bowen's accreditedrepresentativesent an Informal Hearing Presentation (IHP), along with a 1991 ArmyMedical Evaluation Board (MEB) report. The IHP stated, inter alia, that (1) "at issue [was e]ntitlement to an increased rating for muscular dystrophy," (2) the presumption of soundness should apply, and (3) the Board should accepttheMEBdetermination thatMr.Bowen's musculardystrophywasincurredin, andaggravated by, service. R. at 14-15. The Board treated the claim solely as one to reopen based on new and material evidence, and denied his claim to reopen, finding that new and material evidence had not been presented. 2 II. THE PARTIES' ARGUMENTS A. Due Process Mr. Previous HitBowenNext Hit contends that the RO's failure to properly notify him of the date and time of his hearing violated his Due Process rights guaranteed bythe Fifth Amendment of the U.S. Constitution and 38 C.F.R. § 3.103(c)(1). In light of his absence from the RO hearing through no fault of his own, Mr. Previous HitBowenNext Hit argues that another hearing before the RO should have been rescheduled and essentially argues the failure to do so deprived him of a meaningful opportunity to participate in the processing of his claim in violation of his Due Process rights. The Secretary responds that, even assuming he was at fault for not providing a subsequent hearing before the RO, Mr. Bowen's Due Process rights were not violated because he was notified of his opportunity for a hearing before the Board, and he chose not to pursue such a hearing. Moreover, the Secretarynotes that the effective date for the award of benefits predicatedon a finding of CUE in an earlier decision is the same regardless of when the request for revision is filed. See Flash v. Brown, 8 Vet. App. 332, 340 (1995). Accordingly, assuming error in not rescheduling the RO hearing, and because he was subsequently offered a hearing at the Board and the effective date for an award based on CUE receives the same effective date regardless of when the request for revision is filed, the Secretary argues that Mr. Previous HitBowenNext Hit nevertheless cannot demonstrate prejudice from that error. Mr. Bowen's briefing in response to the Secretary was confusing, but after extensive questioning at oral argument, it was clarified that Mr. Previous HitBowenNext Hit believes that the denial of a hearing at the RO level prevented him from clarifying that he sought revision of the 1994 RO decision based on CUE.1 B. CUE In his briefing, Mr. Previous HitBowenNext Hit essentially argues that the Board erred by not considering his reasonably raised argument that the 1994 RO decision was the product of CUE. At oral argument, he clarified that (1) the Board should have construed liberally the IHP and document submission as a request for revision of the 1994 RO decision based on CUE, and should have remanded that matter This specific argument was not presented in Mr. Bowen's briefs to the Court and was elicited only in response to questioning at oral argument. 1 3 for expedited adjudication pursuant to 38 U.S.C. § 5109B, and (2) the denial of a hearing at the RO level prevented him from asserting his CUE request in the first instance. The Secretary contends that the Board did not have jurisdiction over a request for revision of the 1994 RO decision based on CUE because that matter was neither reasonablyraised before nor adjudicated by the RO. And, because the Board did not have jurisdiction over that matter, the Court lacks jurisdiction over it as well. The Secretary also argues that the IHP does not reasonably raise a request for revision based on CUE, and further notes that, assuming CUE was raised to the Board, referral, not remand, would have been the appropriate remedy. Because referral does not confer expedited treatment, and because the effective date for a successful request for revision based on CUE is the same regardless of when the request is filed, the Secretaryargues that Mr. Previous HitBowenNext Hit cannot obtain anyrelief from the Court that he otherwise could not get byfiling his request for revision with the RO. III. ANALYSIS A. Due Process The Secretary does not dispute that Mr. Previous HitBowenNext Hit essentially was denied a hearing at the RO, in violation of § 3.103(c)(1). Rather, the Secretaryargues that Mr. Previous HitBowenNext Hit was afforded Due Process by his right to appeal and the offer to be heard before the Board, such that Mr. Previous HitBowenNext Hit cannot demonstrate prejudice from the fact he was not provided a hearing at the RO. The Secretary's argument is persuasive. The record reflects, and there is no dispute, that Mr. Previous HitBowenNext Hit was notified at his correct address that he could have a hearing before the Board, but chose not to request that hearing. The right to appeal to the Board, including the right to a hearing at the Board, is provided to permit and facilitate de novo review of the appellant's claim as well as to permit the Board to correct RO errors or to remand the erroneous matters to the RO for correction. See 38 U.S.C. § 7104 (an appellant is entitled to "one review on appeal to the Secretary"); Disabled Am. Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1319 (Fed. Cir. 2005) ("[T]he Board conducts de novo review of [RO] proceedings based on the record."); 38 C.F. R. § 19.9(a) (2011) ("If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, [the Board] shall remand the case to the agency of 4 original jurisdiction, specifying the action to be undertaken."). Despite being provided an opportunity to appear at a Board hearing or to submit additional evidence, at no point in the proceedings before the Board did Mr. Previous HitBowenNext Hit contest the fact he was not provided a hearing at the RO level, or, as discussed in further detail below, apprise the Board of his intent to seekreview of the January1994 RO decision based on CUE. Instead, Mr. Previous HitBowenNext Hit submitted an IHP taking issue with the 2008 RO decision and asking the Board to reweigh the evidence. Moreover, irrespective of whether Mr. Previous HitBowenNext Hit asserted his CUE request before the RO or the Board, the Secretary correctly notes that a meritorious request for revision receives the same effective date. See Flash, supra. Under these circumstances, Mr. Previous HitBowenNext Hit fails to demonstrate prejudice. See Shinseki v. Sanders, 556 U.S. 396, 406 (2009) (appellant has burden of demonstrating prejudice); Overton v. Nicholson, 20 Vet.App. 427, 435 (2006)(noprejudiceif error does not affect the essential fairness of the adjudication). In sum, inasmuch as Mr. Previous HitBowenNext Hit was provided notice of his right to appeal to the Board, as well as the right to a hearing at the Board, as well as the fact that a meritorious request for revision based on CUE receives the same effective date regardless of when filed, Mr. Previous HitBowenNext Hit fails to demonstrate a violation of Due Process in the processing of his claim or that he was prejudiced by the failure of the Secretary to provide a hearing at the RO level. Sanders, supra. B. CUE We agree with the Secretary that, even with a sympathetic reading, Mr. Bowen's IHP does not constitute a request for revision of the 1994 RO decision based on CUE. Although we have held that the requirement to sympathetically read the pleadings of a pro se claimant applies to pleadings that might constitute a request for revision based on CUE, a claimant nevertheless must indicate an intent to seek revision and state what constitutes CUE with some degree of specificity. See Canady v. Nicholson, 20 Vet.App 393, 401-02 (2006) (noting that in reading a pro se request for CUE sympathetically "the Board should view the claim in light of the fact that it is the assertion of CUE itself that requires specificity," but "a manifestly changed outcome might be inferred from pro se pleadings"); Andrews v. Principi, 18 Vet.App. 177, 181 (2004) (holding that "[a] CUE allegation must identify the alleged error with some degree of specificity," and the question of whether an appellant has presented a valid CUE allegation is a question of law that the Court reviews de novo); 5 see also Acciola v. Peake, 22 Vet.App. 320, 326 (2008) ("[A] CUE theor[y] [ is] more likely to be successful when the claimant . . . clearly intends to raise it."). There is no contention that the IHP submitted byMr. Previous HitBowenNext Hit to the Board specificallyasserts CUE in the 1994 RO decision. Moreover, the IHP submitted by Mr. Previous HitBowenNext Hit is, at best, confusing. Despite the fact that a claim to reopen was processed bythe RO and certified for appeal to the Board, the IHP cites the matter on appeal as entitlement to an increased rating. The IHP thereafter asserts the contention that Mr. Bowen's muscular dystrophy is service connected, a fact not at issue in an increased-ratingclaim. The IHP then notes that the 2008 RO decision misinterpreted the 1991 Army MEB report when denying Mr. Bowen's claim to reopen, and asks the Board to accept the Army MEB (submitted by Mr. Previous HitBowenNext Hit for inclusion with his claims file)2 as evidence that his muscular dystrophy is service connected. Although a confusing brief lends itself to misunderstanding on the part of the reader, a fair and sympathetic reading of Mr. Bowen's IHP is that (1) he believed the 2008 RO decision was erroneous, (2) the 1991 MEB report should be included in the claims file, and (3) the Board should weigh the evidence in favor of Mr. Previous HitBowenNext Hit. Of note, the IHP fails to mention any error in the 1994 RO decision – indeed, it fails to mention the 1994 RO decision at all – and Mr. Previous HitBowenNext Hit fails to demonstrate that the Board clearly erred when it did not construe Mr. Bowen's IHP as a request for revision of the 1994 RO decision based on CUE. See Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal). Moreover, even if the Board had perceived Mr. Bowen's IHP as a request for revision of the 1994 RO decision, the Secretary correctly notes that the proper remedy would have been a referral, not a remand. This is because requests for revision of an RO decision based on CUE must first be submitted to and adjudicated by the RO before the Board can attain jurisdiction over the request. Jarrell v. Nicholson, 20 Vet.App. 326, 334 (2006) (en banc). And, when the Board lacks jurisdiction over a matter, the referral of the matter to the RO is the appropriate action. Id.; Godfrey v. Brown, 7 Vet.App. 398, 409-10 (1995) (finding the Board's referral appropriate when it lacked jurisdiction to address a newly raised claim, and remand appropriate when it had jurisdiction to address a claim Although Mr. Previous HitBowenNext Hit submitted the MEB for inclusion in his claims file, the Board found that the MEB already was in Mr. Bowen's claim file, and therefore it was not new and material evidence. 2 6 but the proper evidentiary development had not been completed). In this case, Mr. Bowen does not allege that he submitted a CUE request to the RO. However, he may file a request for revision of the 1994 RO decision at any time, without prejudice to the effective date of any award that might be forthcoming. Flash, supra. Indeed, Mr. Bowen's briefing to the Court may constitute such a request that the Secretary should discuss with Mr. Bowen and be prepared to proceed to adjudicate. See Landicho v. Brown, 7 Vet.App. 42, 50 (1994) (noting that filings at the Court may be sufficient indication of intent to file a claim); 38 C.F.R. § 3.155(a) (2011) (requiring the Secretary to provide an application form upon receipt of an informal claim); see also DiCarlo v. Nicholson, 20 Vet.App. 52, 56-57 (2006) (advising the appellant to ask the Secretary to adjudicate an unadjudicated claim in the first instance and seek relief from the Court only if the Secretary refuses to process the request). IV. CONCLUSION Upon consideration of the foregoing, the Board's August 11, 2010, decision is AFFIRMED. 7

Sellers v. Shinseki, No. 08-1758 (Argued November 9, 2011 Decided June 26, 2012);

Excerpt from decision below: "Because the Court finds that the June 2004 RO decision binds VA and the January 2005 RO decision is void ab initio, the Court will set aside the Board's April 2008 decision and reverse in part and affirm in part the Board's June 29, 2011, supplemental decision." "For an RO decision to be effective, the RO must provide notice in accordance with section 5104(a). See 38 C.F.R. § 3.104(a) (2011) ("A decision of a duly constituted rating agency . . . shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. [§] 5104." (emphasis added)). Such notice must, among other things,8 be "provide[d]" to the claimant and the claimant's representative and include "an explanation of the procedure for obtaining review of the decision." 38 U.S.C. § 5104(a). Once notice has been issued pursuant to section 5104(a), the RO may not effect any revisions to its decision, sua sponte, on the same factual basis,9 without a finding of CUE. 38 U.S.C. § 5109A(a); 38 C.F.R. §§ 3.104(a), 3.105(a) (revision of decisions) (2011). Binding the RO at the time section 5104(a) notice is issued serves to "preclude repetitive and belated readjudication of veterans' benefit[s] claims." Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). Binding the RO at such time also activates a claimant's ability to accept its decision or appeal the decision to the Board. 38 U.S.C. § 7105(a)-(c)." "However, even assuming that the M21-1 provisions cited by the Secretary dictated the RO's conduct here, such provisions do not explicitly establish the sequence in which RO adjudicative tasks are performed, nor do they demonstrate that an "award" letter must be generated before a "rating decision" can be transmitted to a claimant and bind VA. Rather, the cited M21-1 provisions merely (1) describe the organization of RO adjudicative functions; (2) identify the procedures to approve "rating decisions" granting entitlement to large retroactive awards; (3) discuss the procedures to authorize "awards" generally; and (4) list requirements for notifying claimants of RO decisions, including those provided by § 3.103(b), (f).15 These provisions fail to establish that rating decisions must be delayed at the behest of producing RO "award" letters." "If further review was required, the RO was empowered to undertake such review pursuant to § 3.105(a), but it was not permitted to introduce "a secret adjudication [in]to a non- adversarial system." MacKlem, 24 Vet.App. at 72. This case presents a disturbing encroachment upon the appellant's rights to participate and respond codified at 38 C.F.R. § 3.103(c)(1) and vindicated in Purple Heart." ---------------------------------------------------- UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 08-1758 IVAN R. SELLERS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Argued November 9, 2011 Decided June 26, 2012) Douglas J. Rosinski, of Columbia, South Carolina, with whom James E. Swiger, of Centreville, Virginia, was on the brief for the appellant. James B. Cowden, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Richard Mayerick, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee. Before KASOLD, Chief Judge, and HAGEL and SCHOELEN, Judges. SCHOELEN, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed an opinion concurring in the result. SCHOELEN, Judge: The appellant, Ivan R. Previous HitSellersNext Hit, through counsel, appeals an April 2, 2008, Board of Veterans' Appeals (Board or BVA) decision in which the Board determined that a July 14, 1988, rating decision did not contain clear and unmistakable error (CUE). Record (R.) at 18. The Board also confirmed that the appellant was not entitled to an effective date earlier than February 5, 2004, for service connection for retinitis pigmentosa (RP),1 as found by the January 31, 2005, Houston VA regional office (RO) decision. Id. Both parties filed briefs, and the appellant filed a reply brief. It was later revealed that a June 1, 2004, rating decision had found CUE in the July 1988 rating decision and awarded a March 25, 1988, effective date for service connection for "Retinitis Pigmentosa" is "a group of diseases, frequently hereditary, marked by progressive loss of retinal response . . . , retinal atrophy, attenuation of the retinal vessels, and clumping of the pigment, with contraction of the field of vision." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1634 (32d ed. 2012) [hereinafter DORLAND'S]. 1 RP. R. at 287-93. A limited remand from this Court to the Board resulted in a June 29, 2011, supplemental Board decision in which the Board determined that the June 2004 rating decision was authentic, but only a draft decision. See Ivan Previous HitSellersNext Hit, BVA 08-1758, at 10, 12 (June 29, 2011). Thereafter, the parties filed supplemental briefs. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Because the Court finds that the June 2004 RO decision binds VA and the January 2005 RO decision is void ab initio, the Court will set aside the Board's April 2008 decision and reverse in part and affirm in part the Board's June 29, 2011, supplemental decision. I. FACTS A. Claim for Entitlement to Service Connection for RP The appellant served on active duty in the U.S. Army from January 1966 to October 1973. R. at 304. In his November 1965 medical history report, the appellant attested that he had a history of eye trouble and that he wore eyeglasses. R. at 466-67, 481. The enlistment examination report observed that the appellant's visual acuity, refraction, pupil equality and reaction, and ocular motility all appeared in normal condition. R. at 484. These impressions were confirmed in the appellant's September 1973 separation examination, which concluded that all visual functions were normal. R. at 454. Nine days after the appellant's separation examination, an ophthalmology examination was conducted because he complained of flashing lights in his left temporal field and a restricted field of vision. R. at 456. The examiner observed that the appellant had suffered visual field contraction and retinal pigment epithelium (RPE) "defects."2 Id. The examiner concluded, however, that "no pathology" existed. R. at 456. In June 1982, a private physician diagnosed the appellant with RP. R. at 500. The physician described the condition as "a collection of disorders which are characterized by night blindness, peripheral visual loss, and, in the later stages of the disease, central vision problems, color vision problems, and reading difficulties." Id. The physician advised that the condition is almost always RPE is the outer pigmented layer of the optical part of the retina that extends from the entrance of the optic nerve to the pupillary margins of the iris. See DORLAND'S at 1781. 2 2 hereditary, but that the appellant had "no specific evidence of similar problems in other members of [his] family." Id. In March 1988, the appellant filed a claim for entitlement to disability compensation for RP with cataracts. R. at 488-94. In July 1988, the RO issued a rating decision denying the claim. R. at 451-52. The RO explained the relevant facts as follows: Onseparationexam[ination], [theveteran] complainedofdecreasedperipheralvision and decreased night vision, and op[h]thalmological evaluation also showed complaints of flashing lights in the left temporal field. No definite pathology was found. [Private physician] reports show [the veteran] has progressive bilateral retinitis pigm[e]ntosa and has undergone bilateral catara[c]t extraction. There is no evidence of eye trauma in service. R. at 452. The RO concluded that the appellant's condition was a constitutional or developmental abnormality (CDA) and that it was not aggravated in service. Id. The September 1988 Statement of the Case (SOC) explained that the appellant's RP was a CDA, and CDAs " can only be service- connected by aggravation."3 R. at 447. To establish service connection by aggravation, the RO continued, [i]t must be actively shown that the condition was made worse by some specific portion of the veteran's military service and made worse at a rate faster than the normal progression of the condition. There is no evidence that the veteran's condition was in any way aggravated by his military service or caused to progress faster than his normal progression by that military service. Id. The appellant failed to perfect an appeal and the decision thus became final. In February2004, the appellant filed a statement arguing that the July 1988 RO decision was premised upon CUE. R. at 410-11. VA construed the appellant's filing as both a request to reopen his claim and a request to revise the July 1988 RO decision because of CUE. R. at 15, 346. B. The Houston RO's Claim Processing: February 2004 to September 2004 The appellant states that on June 14, 2004, he received a phone call from RO official Cynthia Canady, who told him that (1) the RO had made a decision on his request to revise the July 1988 RO Our concurring colleague briefly questions whether the VA determination that RP is a congenital condition, and thus not compensable via in-service incurrence, may stand against the congressionally mandated presumption of soundness. We do not address this question as it was not raised by the parties and is not necessary to our decision. 3 3 decision based on CUE; (2) CUE was found in the July 1988 RO decision; (3) he would receive a July 1988 effective date with a "one time car allowance"; and (4) he would receive "a letter in about a week to ten days stating this award."4 R. at 320. A week later, on June 21, 2004, Ms. Canady e-mailed the appellant's representative and advised him that "VA has made a decision on Mr. Sellers['s] claim." R. at 540. She asked for an address to which to send "a copy of the rating decision and notification letter." Id. That same day, according to a VA report of contact prepared by Ms. Canady, she spoke with the appellant's wife to "verify dependent information in [the] claim folders." R. at 390. On June 23, 2004, the appellant's representative responded to Ms. Canady's June 21, 2004, e-mail and provided a Denver, Colorado, street address for the Blinded Veterans Association. R. at 540. About a week later, the appellant phoned Ms. Canady to ask why he hadn't yet received his notification letter. R. at 320. She responded that it might take a month to receive the letter, but that she had completed the payment tabulation. Id. She quoted the appellant a total award figure of $495,963.03, but she stated that the figure could change because it needed to be reviewed by two other officials. Id. In late July 2004, the appellant called Ms. Canady again to check on the status of the notification letter, but she said that she could not explain why it had been delayed since her tabulations had been "corrected and verified." Id. Ms. Canady advised that his total award would be $534,233.33 plus an $11,000 one-time car allowance. Id. During the second week of September 2004, the appellant again called Ms. Canady to inquire into the status of the notification letter. Id. Upon investigation, Ms. Canady found that the file had been with "the rating board" since August 23, 2004, despite the fact that it bore two of the three signatures needed for disbursement. Id. Ms. Canady said that she could not explain why transmission had been delayed and that she could not help the appellant any further. Id. After again inquiring about the status of the letter that same week, the appellant was directed This account comes from a January 11, 2005, letter submitted to VA on behalf of the appellant by U.S. Senator John Cornyn's office (January 2005 Cornyn Inquiry Letter), which contains the appellant's typewritten account of his interactions with the Houston RO from June 14, 2004, through December 2004. R. at 319-21. 4 4 to the Visual Impairment Services Team (VIST) coordinator at the Houston RO. R. at 320-21. The appellant phoned the VIST coordinator who advised that an issue had arisen regarding the appellant's effective date and that he would look into it. R. at 321. There is no evidence that any followup was conducted. C. The Houston RO's Claim Processing: October 2004 to February 2005 On October 28, 2004, RO Decision Review Officer (DRO) BeverlyCole sought advice from the VA regional counsel, based in New Orleans, Louisiana, regarding the July 1988 RO decision. R. at 294-95. In particular, Ms. Cole sought guidance on whether a March 1985 unpublished General Counsel (GC) opinion was binding and whether it would require the July 1988 RO decision to be revised based on a finding of CUE. R. at 294. A regional counsel staff attorney responded to Ms. Cole's request on December 7, 2004, prefacing her response with the statement that she could not opine on whether the GC opinion would determine whether the July 1988 RO opinion contained CUE, but explaining that she could "advise on portions" of the request. R. at 295. The staff attorney also noted that the "claims folder contains a rating decision dated June 1, 2004." R. at 296. The staff attorney did not, however, comment on the significance of the June 2004 RO decision's presence in the claims file. On November 14, 2004, the appellant submitted a letter to the RO in which he stated: Please allow me to explain some concerns I have about my claim. Having my initial claim and its appeal denied in 1988 and now having been told my recent appeal was approved, you can imagine the excitement my family and I have felt . . . . I must admit my excitement is waning as the months pass by and my phone calls to [the Houston RO VIST coordinator] haven't been returned. * * * * I have been informed that my claim is with the Rating Board. I also understand it's with the Decision Review Offices. What I don't understand is why my claim received two of the three necessary signatures and yet it is back to more review . . . . Why the long delay? * * * * I want you to please write me a letter detailing where my claim actually is and how much longer I should expect [to wait] before my claim is finalized. R. at 386. There is no record evidence showing that any RO official responded to the appellant's letter. During the first week of December 2004, the appellant again contacted the RO and, several 5 days later, an RO official advised the appellant that his file had been sent to New Orleans for a legal opinion. R. at 321. The official explained that there was a legal question whether the effective date would be 1988 or 1989, and that legal counsel recommended "us[ing] the earlier date," but that VA nevertheless owed the appellant money and that they would pay him. Id. In the second week of December 2004, the appellant visited the RO in person and was advised that the effective date for his evaluation would be February 5, 2004, the date of his CUE request to revise the July 1988 RO decision. Id. On December 14, 2004, an RO rating specialist solicited an eye examination from the VA medical center as to the "[e]tiology/onset" of the appellant's RP. R. at 293, 377-79. At the January 14, 2005, examination, the examiner concluded that the appellant suffered from advanced RP "with very significant loss of peripheral vision [in] both eyes and small islands of vision remaining [in] both eyes." R. at 325. The physician concluded that it was at least as likely as not that the retinitis pigmentosa began to manifest while the patient was in military service. This is based not only on his own anecdotal experiences of reduced peripheral and night vision while actively engaged in his military duties but also based on viewing records of eye exams when he was separated from military service in September of 1973 during which time he made similar complaints . . . . As for whether the retinitis pigmentosa was aggravated by the patient[']s military service, I cannot resolve that issue without resort to mere speculation. Id. On January 31, 2005, the RO issued a decision granting service connection for RP effective February 5, 2004, but denying the appellant's request to find that the July 1988 RO decision contained CUE. R. at 352-71. The decision also awarded the appellant entitlement to special monthly compensation, adapted housing, and automobile and adaptive equipment. R. at 366, 371. The January 2005 RO decision was signed by two officials: (1) Susan Durkin, and (2) Beverly Cole, the DRO who had sought an opinion from the VA regional counsel in October 2004. R. at 294, 371. D. The Appellant's Notice of Disagreement and Subsequent RO Actions OnMarch11,2005, the appellant, through his representative, filed his NODwith theJanuary 2005 RO decision. R. at 332. On May 3, 2005, the appellant filed a statement setting forth more fullythe reasons he disagreed with the RO's denial of his request to revise the July 1988 RO decision 6 based on CUE.5 R. at 286. In particular, the appellant stated: I am [] submitting a copy of [an] undated VARO letter with rating decision dated June 1, 2004, as evidence that my effective date should be March 25, 1988, as this previous decision established. I contend this effective date is based on a Clear and Unmistakable Error (CUE) . . . . Id. The June 2004 RO decision that the appellant attached to his correspondence found CUE in the July 1988 RO decision and granted entitlement to service connection for RP at a 100% evaluation, effective March 25, 1988. R. at 289, 292. The June 2004 RO decision set forth the reasons for the decision and a summary of the evidence. R. at 290-91. The June 2004 RO decision also granted special monthlycompensation and entitlement to automobile and adaptive equipment. R. at 292-93. That decision contained the signatures of three officials: (1) Susan Durkin, who also signed the January 2005 decision; (2) "L. Spurlock"; and (3) the illegible signature of an official purporting to sign "for" Paul Black, Chief of the Houston RO.6 R. at 293. The cover letter that the appellant submitted with the June 2004 RO decision was addressed to the appellant's representative in Denver, Colorado. R. at 287. The letter is undated, but contains the stamped signature of Houston RO Chief Paul Black. R. at 287-88. Unlike the June 2004 RO decision, the cover letter refers only to the appellant's entitlement to automobile and adaptive equipment.7 R. at 287-88. However, the letter's "Enclosure(s)"linecontainsthreeentries:(1)"VAForm 4107 ";(2)"VA Form 21-4502;" and (3) "Rating Decision." R. at 288 (emphasis added). The letter further explains "[t]he enclosed VA Form 4107, 'Your Rights to Appeal Our Decision,'explains your right to appeal." Id. The letter also notes that VA Form 21-4502 is the "Application for Automobile or Other Conveyance and Adaptive Equipment." R. at 287. The record is not clear as to when or how the appellant obtained the notification letter or the June 2004 RO decision. 5 The May 2005 statement was received by the RO on June 6, 2005. R. at 286. In its June 29, 2011, supplemental decision, the Board found that the third signer was a "coach," who "sign[ed] on behalf of the Chief, Veteran's Service Center." See Ivan Sellers, BVA 08-1758, at 5. The record does not contain any rating decision decided prior to the June 2004 RO decision that granted entitlement to automobile and adaptive equipment. 7 7 6 On August 22, 2005, the RO issued an SOC in response to the appellant's March 2005 NOD, reiterating its January 2005 finding that the July 1988 RO decision did not contain CUE. R. at 200- 25, 249-76. The August 2005 SOC neither mentioned nor acknowledged receipt of the appellant's May 2005 statement discussing the attached June 2004 RO decision. On October 14, 2005, the appellant, through his representative, submitted his Substantive Appeal to the Board. R. at 177-88. This document appealed the August 2005 SOC. The Substantive Appeal does not mention the May 2005 statement or the June 2004 RO decision. In response to the appellant's Substantive Appeal, the RO issued a Supplemental Statement of the Case (SSOC) on April 10, 2006. R. at 173-76. The April 2006 SSOC does not mention the May 2005 statement or the June 2004 RO decision. R. at 173. On June 22, 2006, the appellant requested a hearing in connection with his " pending appeal for effective date and Clear and Unmistakable Error (CUE) for retinitis pigmentosa." R. at 154. At the December 18, 2006, hearing held at the RO by DRO Marian Peters, the appellant testified that he had received a call on June 14, 2004, advising him that his request to revise the July 1988 RO decision based on CUE had been granted and that he would receive a check " for the retroactive payback of [sic] March 1988." R. at 81. The appellant explained that subsequent attempts to obtain the retroactive payment based upon the June 2004 RO decision were unfruitful. R. at 81-82. In response, DRO Peters stated that we've had the person in our front office [] look at this case; like you were saying you were called [and told] that it had been approved; that is true. We tried to grant the benefit from our perspective, but the front office said No! This is an incorrect decision. As a DRO I cannot overrule what the front office says; however, I am going to wait until Iget your transcript back with everything that you have said in this hearing today. When I get that transcript back, I'm going to go and see if I can talk to some people that are in the front office to see if they will listen and see . . . if they will listen and read what you have told me concerning the law that we should apply . . . but I as a Decision Review Officer cannot overrule what the front office says because a decision review officer prior to me was the one that signed off on the rating granting, saying it was a clear and unmistakable error . . . . I cannot promise you anything. R. at 83 (emphasis added). On June 21, 2007, the RO issued a second SSOC, signed by DRO Dexter Leavitt, in which it reaffirmed its January2005 finding that the July 1988 RO decision did not contain CUE. R. at 66- 8 72. The appellant appealed this RO decision. R. at 57. E. Proceedings Before the Board On December 17, 2007, the Board conducted a hearing at which the appellant testified as to his failed attempts to obtain the disability compensation award dictated by the June 2004 RO decision. R. at 29-30. With respect to the June 2004 RO decision, the appellant stated: "I have a copyof it, I have the signed signatures and when I showed it to someone [] in the regional office they were surprised that I had signatures because I'm not supposed to have . . . [the] decision . . . ." R. at 29. The appellant continued that he "was never told why [the June 2004 RO decision] was not allowed," and that was why he had a "bad taste in [his] mouth." R. at 29- 30. On April 2, 2008, the Board issued a decision denying the appellant's motion to revise the July 1988 RO decision based on CUE, but failed to acknowledge or discuss the June 2004 RO decision. R. at 2-18. Instead, the decision focused on the merits of the appellant's motion for revision based on CUE and earlier-effective-date argument. R. at 4-16. F. Procedural History on Appeal: The June 2004 RO Decision Revelation On June 9, 2008, the appellant filed his Notice of Appeal to this Court. The appellant's initial and reply briefs, prepared by his attorney at the time, failed to mention the June 2004 RO decision. The record did not include the June 2004 RO decision or any related documents, and it lacked several documents critical to the appeal, including the August 2005 SOC and the complete January 2005 RO decision. On January 25, 2011, the Court issued a memorandum decision affirming the Board's April 2, 2008, decision that the July 1988 RO decision did not contain CUE. See Sellers v. Shinseki, No. 08-1758, 2011 WL 219905 (Jan. 25, 2011). On February 10, 2011, the appellant's counsel moved to withdraw citing the appellant's instruction, and the Court granted his motion 15 days later. The next day, the appellant filed a motion for panel review pro se, attaching the June 2004 RO decision as evidence that he was entitled to a March 1988 effective date pursuant to MacKlem v. Shinseki, 24 Vet.App. 63 (2010). See Motion for Panel Review at 3-5, 8-12. On May 27, 2011, the Court granted the appellant's motion for panel review, withdrew the January 25, 2011, memorandum decision, and remanded the matter to the Board for the limited purpose of determining (1) whether the June 2004 RO decision was an authentic document; and (2) 9 whether it was the subject of the Extraordinary Award Procedure (EAP), invalidated by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Military Order of the Purple Heart v. Secretary of Veterans Affairs, 580 F.3d 1293 (Fed. Cir. 2009) (Purple Heart). On remand, the same Board member who presided over the appellant's December 2007 Board hearing and who produced the April 2008 Board decision began by making the following observations: [T]he Board notes that the June 2004 document was not of record at the time of the Board's April 2008 decision. This document was first submitted by the Veteran in June 2005. This document appears to be a document created by the RO, and shows that it was signed by three RO personnel (a rating specialist, a decision review officer, and a "coach" (signing on behalf of the Chief, Veteran's Service Center)), who determined that the July 1988 decision, which denied service connection for retinitis pigmentosa, was CUE. Ivan Sellers, BVA 08-1758, at 5. The Board ultimately concluded that the June 2004 RO decision was authentic. Id. at 6. The Board next found that the June 2004 RO decision was not promulgated pursuant to the EAP. Id. at 9. The Board first explained that the EAP at issue in MacKlem and Purple Heart was not in effect at the time the June 2004 RO decision was revised. Id. at 10. The Board also found that nothing indicated that the June 2004 RO decision was subject to an "EAP-like" process. Id. The Board further observed that there was no basis to show that the RO sought and obtained a determination from the Compensation and Pension Service or other decision maker outside the RO. Id. at 11. On the contrary, according to the Board: The evidence shows that the Veteran's claim was adjudicated only by RO personnel, specifically, the January 2005 grant of his claim was signed by two RO personnel. He is therefore not shown to have been denied "in person" interaction with the deciding officials, as required by 38 C.F.R. § 3.103(c)(2). Id. The Board also found that the June 2004 RO decision was not received "in the regular course of business" by the appellant: This document does not bear a date stamp, or any other indication, to show that it was ever mailed to the Veteran, nor does the Veteran contend[] that he received this document in the regular course of business as a decisional document. See 38 U.S.C.A. § 5104. This document is not accompanied by a cover letter, nor does it 10 contain any indication that it notified the Veteran of his appellate rights. See 38 C.F.R. § 19.25 (2010). In short, there is nothing to show that this document was provided to the appellant in the regular course of business as a decisional document. In this regard, the Veteran has stated that he was advised that his claim had been granted during telephone conversations with RO personnel in June 2004. See Veteran's letters, received in January 2005 and August 2010. In his January 2005 letter to his Congressman, he clearly expressed frustration that an award letter had not been received. The fact that VA did not transmit the June 2004 provisional document to the Veteran in the normal course of business is a clear indication that VA did not intend the June 2004 document to be a final decision. Id. at 10. The Board ultimately concluded that the June 2004 RO decision "was apparently written up as a . . . draft decisional document," and was subject to further review, including review informed by advisory legal and medical opinions. Id. at 11 (emphasis in original). The Board also noted that receipt of incorrect information from RO personnel alone is not a basis upon which to award benefits. Id. at 12. G. Procedural History on Appeal: Supplemental Briefing on the June 2004 RO Decision In September 2011, the Court required the parties to submit supplemental briefing on two jurisdictional questions raised by the supplemental Board decision. First, the parties were required to articulate what transmission from VA to a claimant is considered a " decision" that binds VA field offices and to discuss whether the June 2004 RO decision constitutes such a decision. September 2011 Briefing Order at 1. Second, the parties were ordered to address whether the presumption of regularity attached to the manner in which the June 2004 RO decision was approved and transmitted to the appellant. Id. The parties were also ordered to be prepared to discuss at oral argument whether an August 2011 revision to 38 C.F.R. § 3.103(c)(1) (2010) would have an impermissible retroactive effect as applied in this case. Id. at 2. II. ANALYSIS A. A Binding RO Decision as Jurisdictional Prerequisite 1. Introduction This Court's ability to hear and decide cases is predicated upon the parties' timely adherence to procedural requirements imposed by statute and regulation. See Best v. Brown, 10 Vet.App. 322, 11 325 (1997); see also Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1201-06 (2011). The requirement that the Court may only review Board decisions over which the Board had jurisdiction, is the touchstone of the Court's own jurisdiction. See 38 U.S.C. §§ 7104(a) (jurisdiction of the Board), 7252(a) (jurisdiction of the Court), 7266(a) (Notice of Appeal); see also Jarrell v. Nicholson, 20 Vet.App. 326, 334 (2006) (en banc). In this vein, the Board is unable to act on a "matter" absent an appealable, binding RO decision that is adverse to the claimant. 38 U.S.C. §§ 511(a) (decisions of the Secretary), 7104(a); see also Godfrey v. Brown, 7 Vet.App. 398, 409-10 (1995); Bernard v. Brown, 4 Vet.App. 384, 391 (1993). For an RO decision to be effective, the RO must provide notice in accordance with section 5104(a). See 38 C.F.R. § 3.104(a) (2011) ("A decision of a duly constituted rating agency . . . shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. [§] 5104." (emphasis added)). Such notice must, among other things,8 be "provide[d]" to the claimant and the claimant's representative and include "an explanation of the procedure for obtaining review of the decision." 38 U.S.C. § 5104(a). Once notice has been issued pursuant to section 5104(a), the RO may not effect any revisions to its decision, sua sponte, on the same factual basis,9 without a finding of CUE. 38 U.S.C. § 5109A(a); 38 C.F.R. §§ 3.104(a), 3.105(a) (revision of decisions) (2011). Binding the RO at the time section 5104(a) notice is issued serves to "preclude repetitive and belated readjudication of veterans' benefit[s] claims." Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). Binding the RO at such time also activates a claimant's ability to accept its decision or appeal the decision to the Board. 38 U.S.C. § 7105(a)-(c). Exercise of this Court's jurisdiction is thus dictated by the RO issuing a binding decision, in accordance with section 5104(a), which a claimant may appeal. See 38 U.S.C. §§ 7104(a), (b), (c), 8 See section II.A.3, infra, for a full discussion of these requirements. Revisions to final decisions made on different facts must be made pursuant to a finding of new and material evidence, and because the adjudication is based on a new set of facts it is, in effect, an adjudication of a new claim. 38 U.S.C. § 5108. There is no dispute that no such finding was made at any point in this case. 12 9 7252(a), 7266(a). Any question, therefore, whether the Board improperly acted upon a nonbinding, unappealable RO decision invokes the Court's independent obligation to police its own jurisdiction: [J]urisdiction[al] [questions] alter[] the normal operation of our adversarial system. Under that system, Courts are generally limited to addressing the claims and arguments advanced by the parties. Courts do not usually raise claims or arguments on their own. But federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore theymust raise and decide jurisdictional questions that the parties either overlook or elect not to press. Henderson, 131 S. Ct. at 1202 (citation omitted); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir.1996)(statingthatit is a "well-established judicial doctrine that anystatutorytribunalmust ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage in the proceedings, and, once apparent, must be adjudicated" (emphasis added)). The Court is therefore compelled to resolve all jurisdictional questions before proceeding to the merits of an appeal. 2. The Jurisdictional Issue Before the Court This appeal began as a dispute over whether the Board erred in finding that there was no CUE in the July 1988 RO decision (a determination first made by the RO in a January 2005 decision), but the introduction of the June 2004 RO decision calls into question whether the January 2005 RO decision itself was improperly promulgated. If the June 2004 RO decision is the operative RO decision, then the Board lacked jurisdiction to entertain the appeal of the January 2005 RO decision, and, in turn, this Court lacks jurisdiction to review the merits of the April 2008 Board decision. Cf. Jarrell, 20 Vet.App. at 334; see also Bernard, 4 Vet.App. at 391. There is no dispute that the January 2005 RO decision did not find, pursuant to § 3.105(a), that the June 2004 RO decision contained CUE. There is also no dispute that the June 2004 RO decision is authentic, Ivan Previous HitSellersNext Hit, BVA 08-1758, at 6, and there is no allegation of fraud. However, the Secretaryargues that the June 2004 RO decision is merelyprovisional because it lacks indicia of a binding RO decision, includingclear evidence that the RO provided the appellant notice of the decision in accordance with 38 U.S.C. § 5104(a). Secretary's Supplemental (Supp.) Brief (Br.) at 5-7. The appellant responds that the June 2004 RO decision is binding upon VA because the record evidence requires the Court to presume that the Houston RO transmitted the 13 decision to the appellant and his representative. Appellant's Supp. Br. at 7-8. The Secretary maintains, however, that, irrespective of how the appellant received the June 2004 RO decision, an additional layer of review and authorization was required before it could be released so as to bind VA. Secretary's Supp. Br. at 10-11. The Court must determine whether the RO provided section 5104(a) notice of the June 2004 RO decision to the appellant and his representative such that it became a final, binding decision pursuant to § 3.104(a). The Court will also examine whether the June 2004 RO decision was promulgated and authorized consistent with RO procedure set forth in VA Adjudication Procedures Manual M21-1 (M21-1) and whether the June 2004 RO decision retains features of a typical RO decision.10 In so doing, the Court is empowered to make any finding of fact "crucial to the proper determination of whether this Court has jurisdiction." Stokes v. Derwinski, 1 Vet.App. 201, 203-04 (1991); see also Evans v. Shinseki, 25 Vet.App. 7, 10 (2011). 3. The Provision of Notice On remand, the Board found that, although the June 2004 RO decision was authentic, it was a "draft" decision. Ivan Previous HitSellersNext Hit, BVA 08-1758, at 6, 11. First, the Board explained that the June 2004 RO decision was not accompanied by a cover letter or notice of appellate rights. Id. at 10. The Board furtherobserved that "VA did not transmit the June 2004 provisional document to the Veteran in the normal course of business" and this fact "is a clear indication that VA did not intend the June 2004 document to be a final decision." Id. The Secretary echoes the Board's conclusion, emphasizing that, "[t]o the extent [the] [a]ppellant came into possession of [the June 2004 RO decision and notification letter] by means other than direct receipt from VA, they would not be in conformance with the requirements of [section 5104(a)]." Secretary's Supp. Br. at 5-6 (emphasis added). The Board and the Secretary misunderstand the facts of this case and the minimum For purposes of this matter, it is unnecessary to determine whether M21-1 provisions serve as nonbinding guidance for VA adjudicators, see Guerra v. Shinseki, 642 F.3d 1046, 1050- 51 (Fed. Cir. 2011), or whether they have the force and effect of law. See Cohen v. Brown, 10 Vet.App. 128, 139 (1997); Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990); see also Morton v. Ruiz, 415 U.S. 199, 235 (1974); 38 C.F.R. § 19.5 (2011). Therefore, the Court will not reach this issue. 14 10 requirements for the content and effective transmission of decisional notice. First, the notice requirements codified in section 5104(a) and enumerated in 38 C.F.R. § 3. 103(b)(1), (f) dictate that notice of an RO decision shall be "provide[d] to the claimant and to the claimant's representative" and such notification shall be "in writing." Section 3.103(f) elaborates that [a]ll notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph (c) of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case forassistancein perfectingan appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals). 38 C.F.R. § 3.103(f) (2011); see also 38 C.F.R. § 3.103(b)(1) ( addingthat notice shall include advice of the right to representation). Second, the Board fails to appreciate that the June 2004 RO decision, as submitted with the appellant's May 2005 statement, was "[e]nclos[ed]" with a notification letter. R. at 287-92. The notification letter also provided that VA's "Form 4107" was enclosed with the letter, which indicates that the appellant received notice of his appellate rights as required by§ 3.103(b)(1), (f).11 R. at 288; see, e.g., Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) ( holding that the Court did not err "by applying the presumption of regularity to the mailing of a copy of a notice of appeal rights . . . particularly in light of the [notification letter] which was present in the record"). Thus, the Board's finding that there was "[no] indication" that the appellant was notified of his appellate rights was erroneous. Ivan Previous HitSellersNext Hit, BVA 08-1758, at 10; see Pentecost v. Principi, 16 Vet.App. 124, 129 (2002) ("Reversal is the appropriate remedy when there is absolutely no plausible basis for the BVA's decision and where that decision is clearly erroneous in light of the uncontroverted evidence in appellant's favor" (citation omitted)).12 The notification letter's effectiveness is not undermined because it only mentions the appellant's entitlement to automobile and adaptive equipment. See R. at 287-88. There is no RO practice to list all findings in a notification letter where, as here, the rating decision is provided with the notification letter. See R. at 288-93; M21-1, pt. III, ch. 11, para. 11.09(a)(1). There is also no evidence of an RO decision prior to June 2004 granting the appellant's entitlement to automobile and adaptive equipment. The appellant maintains that a written notice of appellate rights is unnecessary where, as here, a claimant receives a favorable decision. Appellant's Supp. Br. at 12. The inclusion of 15 12 11 In addition, our caselaw makes clear that defects of decisional notice are cured when the record demonstrates that the claimant and his representative actually received notice of the decision.13 SeeClarkv.Principi,15Vet.App.61,62-64 (2001)(holdingthat Board's " mailingdefect was cured by the appellant's actual receipt of a copy of the June 1999 Board decision in January 2000"); cf. Hauckv. Brown, 6 Vet.App. 518, 519 (1994)(statingthat notice defects arenot overcome where there is no evidence of actual receipt). Contraryto the Secretary's view, the issue whether VA directly transmitted decisional notice to the claimant is moot where actual receipt is established. See Ashley v. Derwinski, 2 Vet.App. 62, 65-67 (1992). Indeed, actual receipt serves to establish finality for purposes of appeal to this Court. See id. at 67 (holding that the date of actual receipt was the date on which the 120-day period of section 7266(a) began to run); cf. Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (holding that, "where VA has failed to procedurally comply with statutorily mandated requirements, a claim does not become final for purposes of appeal to the Court" and thus, "there is no final Board decision before us for review"). In Ashley, the Board mailed its decision to the claimant consistent with section 7104(e), but the Board failed to mail its decision to the appellant's representative. Ashley, 2 Vet.App. at 67. Rather, a third party – a "State Veterans Claims Agent" – relayed to the representative a copy of the decision previously mailed to the claimant. Id. at 65. The Court in Ashley held that the defective transmission of the Board decision to the representative via a third party was irrelevant because the record established that the representative in fact received the decision. Id. at 67 ("There is no need for us to decide what the result would have been had [the claimant's representative] never received thedecision."). Similarly,whereaclaimant demonstratesactual receiptofanRO decisionandnotice from either the RO or his representative, there is no question whether such notice is effective and binding on VA pursuant to section 5104(a) and § 3.104(a). VA's written notice of appellate rights form with the notification letter moots the appellant's argument; therefore, the Court need not resolve this issue. The Secretary argues that the notification letter bears inconsistencies with RO procedures for the dating and filing of final correspondence. Secretary's Supp. Br. at 5; see also M21-1, pt. III, ch. 11, para. 11.06. As explained above, however, these inconsistencies are irrelevant where it is established that the claimant and his representative have received notice. 16 13 In this case, the record at bar provides ample evidence that the appellant and his representative received the June 2004 RO decision and notification letter, as submitted with the appellant's May 2005 statement.14 On June 14, 2004, an RO official advised the appellant that a decision had been rendered and that written notice was forthcoming. R. at 320. In an email to the appellant's representative on June 21, 2004, an RO official confirmed that a decision had been rendered and asked that the representative provide a mailing address to which to send a copy of the "rating decision and notification letter." R. at 540. In response, the representative provided the Denver, Colorado, street address for his service organization. Id. RO officials prepared a notificationletter,securedtheRO Chief's signature,andaffixedtheDenver, Colorado,streetaddress to the notification letter. R. at 287-88. In his May 2005 statement to the RO, the appellant "[e]nclos[ed]" the June 2004 RO decision with the notification letter bearing the Denver, Colorado, street address provided by the representative. R. at 286-92. The appellant asserted that the June 2004RO decisionandaccompanyingnotificationletterdemonstratedthattheJuly1988RO decision was "based on a Clear and Unmistakable Error." R. at 286. Thus, we need not decide how the appellant received the June 2004 RO decision directly from the RO or from his representative because the facts of this case establish that VA provided The Secretary also speculates that the appellant's representative obtained possession of these documents during a period of review sanctioned by M21-1, pt. VI, ch. 2, para. 2.05. Secretary's Supp. Br. at 6. However, the record provides no basis for this theory. As the Secretary posits, RO procedure permits a claimant's representative to review a rating decision and discuss any outstanding issues with a rating official at the RO or, with permission from the Chief of the RO, outside the RO. See M21-1, pt. VI, ch. 2, para. 2.05. The Secretary ignores, however, the RO's practice, consistent with regulation, of preparing notification letters only at the time of issuing binding decisions, not when providing for a representative's review of a draft rating decision. See M21-1, pt. III, ch. 11, para. 11.09(a); 38 C.F.R. §§ 3.103( b)(1), (f), 3.104(a); cf. M21-1, pt. VI, ch. 2, para. 2.05. Thus, the fact that the RO expressed its intent to send a notification letter to the appellant's representative 20 days after the rating decision was approved (R. at 289, 540), and that the notification letter is addressed to the representative (R. at 540), is clear evidence that he did not obtain the June 2004 RO decision during a period of prepromulgation review. Moreover, there is no record evidence suggesting that the appellant's representative traveled from his location in Denver, Colorado, to the RO in Houston, Texas, to conduct the in-person review contemplated by RO procedure or that the representative was granted an exemption from the Chief of the RO for offsite review. See M21- 1, pt. VI, ch. 2, para. 2.05. The Secretary's speculation must, therefore, be rejected. 17 14 notice of the June 2004 RO decision in accordance with section 5104(a) and § 3.103(b)(1), (f). Accordingly, the Secretary's arguments must be rejected and the Board's findings on this issue must be reversed. 4. The Adjudicative Process and Rating Decision Content The Secretary also argues that the June 2004 RO decision is not a final, binding decision becauseit wasnotpromulgatedconsistentwith RO decision-authorization procedure. TheSecretary repeatedly refers to an additional layer of review, which should have occurred after the designee of the Chief of the RO signed the June 2004 RO decision, which was required to render the decision binding, rather than merely "provisional[]." Secretary's Supp. Br. at 10. Specifically, citing to M21- 1 provisions, the Secretary maintains that a "post-determination team" was required to review the June 2004 RO decision and calculate an "award"(aschedule of payments) before it could be released to the appellant and bind VA. Secretary's Supp. Br. at 9. In other words, the Secretary asserts that the appellant and his representative could not be notified until after postdetermination review. However, even assuming that the M21-1 provisions cited by the Secretary dictated the RO's conduct here, such provisions do not explicitly establish the sequence in which RO adjudicative tasks are performed, nor do they demonstrate that an "award" letter must be generated before a "rating decision" can be transmitted to a claimant and bind VA. Rather, the cited M21-1 provisions merely (1) describe the organization of RO adjudicative functions; (2) identify the procedures to approve "rating decisions" granting entitlement to large retroactive awards; (3) discuss the procedures to authorize "awards" generally; and (4) list requirements for notifying claimants of RO decisions, including those provided by § 3.103(b), (f).15 These provisions fail to establish that rating decisions must be delayed at the behest of producing RO "award" letters. By contrast, the record demonstrates that the decisional content stipulations set forth in M21-1, pt. VI, ch. 3, paras. 3.08-3.30 are met by the June 2004 RO decision, including the following: (1) The organization of the decision into "narrative" and "codesheet" sections; (2) inclusion of "Introduction," "Decision," "Evidence," "Reasons for Decision," and " References" subsections; and (3) specific evaluation and effective date. R. at 287-93. Moreover, consistent with M21-1, pt. VI, 15 See M21-1, pt. I, ch. 2, paras. 2.01-2.03; M21-1, pt. III, ch. 11, para. 11.09(a); M21-1, pt. V, ch. 9, para. 9.01; M21-1, pt. VI, ch. 3, para. 3.07. 18 ch. 3, para. 2.04(c), the June 2004 RO decision itself contains two signatures from rating specialists, and a third from the designee of the Chief of the Veterans ServiceCenter, in accordance with M21-1, pt. VI, ch. 3, para. 3.07. R. at 293. 5. The Binding June 2004 RO Decision and 38 C.F.R. § 3.105(a) As discussed above, the June 2004 RO decision is an authentic product of the RO adjudicative process, it contains content typical of RO rating decisions, and the RO provided notice of the June 2004 RO decision to the appellant and his representative consistent with section 5104(a) and § 3.103(b)(1), (f). In light of these facts, the Court must hold that VA is bound by the June 2004 RO decision. See 38 C.F.R. § 3.104(a). It follows, therefore, that the January2005 RO decision is void ab initio. 16 The January2005 RO decision is not based on a finding of new and material evidence, see 38 U.S.C. § 5108, nor is it predicated on a finding of CUE in the June 2004 RO decision, see 38 C.F.R. § 3.105(a), nor did the RO follow the established procedures for revoking a prior decision. See 38 C.F.R. § 3.105(e). The RO thus lacked authority to render a decision on the same factual basis as the June 2004 RO decision, see 38 C.F.R. § 3.104(a), and the Board's exercise of jurisdiction over the January2005 RO decision was likewise in excess of statutory authority. 38 U.S.C. §§ 7104(a), (b), (c); see also Jarrell, 20 Vet.App. at 334; Bernard, 4 Vet.App. at 391. B. The Applicability of Purple Heart 1. Introduction The peculiar facts of this case raise an issue that provides an alternative basis upon which to hold that the Board lacked jurisdiction to entertain the merits of the January 2005 RO decision: Namely, whether the process by which the RO revised its June 2004 RO decision violates the appellant's procedural rights, thus rendering the January 2005 RO decision void ab initio. See MacKlem, 24 Vet.App. at 71 (finding that where an RO decision was revised pursuant to the invalid EAP, the resulting decision was void ab initio); Purple Heart, 580 F.3d at 1297-98. The principle announced in Purple Heart and enforced in MacKlem holds that policies that impinge upon the "veteran's right to participate and respond" while VA revises a decision on the 16 The Secretary's attempt to apply the presumption of regularity to the January 2005 decision must, therefore, fail. Secretary's Supp. Br. at 8. 19 veteran's claims violate 38 C.F.R. § 3.103(c), among other regulations. Purple Heart, 580 F.3d at 1297. To be sure, as the Board determined, the EAP at issue in Purple Heart is not implicated in this case – the EAP was first instituted in August 2007, more than two years after review of the June 2004 RO decision. Ivan Previous HitSellersNext Hit, BVA 08-1758, at 10. However, the question before the Court, as the Board recognized, is whether the RO engaged in an "EAP-like" procedure in its review of the June 2004 RO decision, which, too, would run afoul of the principle announced in Purple Heart. Ivan Previous HitSellersNext Hit, BVA 08-1758, at 10. Such a question of law is one the Court reviews de novo, without deference to the Board's conclusions of law. See Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc). 2. Law At the time of the Purple Heart decision, a claimant's "right to participate and respond" was principally protected by provisions of § 3.103, which stated: § 3.103(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right to representation . . . and it is the obligation of the VA to assist a claimant in developing the facts pertinent to the claim . . . . The provisions of this section apply to all claims for benefits and relief, and decision thereon, within the purview of this part 3. * * * * § 3.103(c)(1). Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim . . . . VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. * * * * § 3.103(c)(2). The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent . . . . It is the responsibility of the employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant mayhave overlooked and which would be of advantage to the claimant's position. Purple Heart, 580 F.3d at 1296-97 (citing 38 C.F.R. § 3.103(a), (c)). The Federal Circuit in Purple Heart also cited § 3.105, under which, in the event of a proposed reduction in granted benefits, the RO must give the beneficiary "60 days for the presentation of additional evidence to show that [the] benefits should be continued at their present level." Id. (citing 38 C.F.R. § 3.105(e), (f), (g)). The Federal Circuit observed that these procedural protections were threatened by the EAP: 20 [B]y the new procedure the veteran does not have a hearing in the presence of the persons who now have final decisional authorityfor [RO] decisions.It is notdisputed that there is no opportunity to provide additional evidence "which would be of advantage," § 3.103(c)(2), and that the veteran is not told when the [RO] makes an award that meets the criteria of this new C & P procedure. The [EAP] instructs the [RO]: "Do not offer these [large award] rating decisions to any veteran's representative for review until the C & P Service makes a final determination regarding the propriety of the decision." The new procedure does not provide the "in person" interaction provided by § 3.103(c)(2), and no opportunity to respond to the concerns of the deciding official, whose decisional authority is removed from the [RO]. See Fast Letter 07-19, at 2 ("If the C & P determines the decision is improper, it will provide specific corrective action."); Fast Letter 08-24, at 3 ("C & P instructions are considered part of the pre-decisional process and are not to be included in the permanent record . . . . [R]epresentatives will be permitted the opportunity to review the draft rating decision, but only after the file is returned from C & P Service and corrections, if necessary, are made to it."). The C & P Service's determination is then issued in the name of the [RO], and the veteran has no way of knowing what persuaded an unidentified decision-maker to reduce the award that was made by the persons before whom the hearing was held. Purple Heart, 580 F.3d at 1297. The Federal Circuit, accordingly, held the EAP invalid. Id. at 1297-98. 3. The Retroactive Effect of 38 C.F.R. § 3.103(c)(1) (2011) Since Purple Heart and MacKlem were decided, § 3.103(c)(1) was amended. Effective August 23, 2011, § 3.103(c)(1) no longer guaranteed a hearing before "one or more employees who have original determinative authority" over the issues to be decided at the hearing. Instead,claimants were only entitled to a hearing before "one or more employees of the VA office having original jurisdiction over the claim to conduct the hearing and to be responsible for establishment and preservation of the hearing record." Compare 38 C.F.R. § 3.103(c)(1) ( 2011), with 38 C.F.R. § 3.103(c)(1) (2010).17 The regulatory provision was amended while the appellant's claim was 17 VA claimed that "[t]his language [was] consistent with other portions of § 3.103(c)(1)." Rules Governing Hearings Before the Agency of Original Jurisdiction, 76 Fed. Reg. 52,572-01, 52,573 (Aug. 23, 2011) (to be codified at 38 C.F.R. pts. 3, 20). VA undertook this amendment as part of a host of amendments to "reflect VA's intent" to " clearly distinguish hearings before [agencies of original jurisdiction] from hearings before the Board, including the duties of the respective VA personnel conducting the hearing." Id. 21 pending before this Court. See Rules Governing Hearings Before the Agency of Original Jurisdiction, 76 Fed. Reg. at 52,572-73. At oral argument, the Secretary conceded that the amendment did not alter the RO's responsibilities with respect to the conduct of hearings. Given this concession, the Court need not inquire into whether VA's amendment "would impair rights a party possessed when he acted," thus having "an impermissible retroactive effect."18 Ervin v. Shinseki, 24 Vet.App. 318, 322 (2011) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 272 (1994)). 4. The Purple Heart Doctrine Applied to this Case The Board found that the January 2005 RO decision was not produced pursuant to an EAP- like procedure. Ivan Previous HitSellersNext Hit, BVA 08-1758, at 11. TheBoard explained that the RO did not abdicate decisionmakingauthorityto an outside decisionmaker and that the appellant's claim was adjudicated by RO personnel. Id. As such, the Board reasoned that the appellant was not denied "in[-] person interaction with the deciding officials, as required by 38 C.F.R. § 3.103( c)(2)." Id. At oral argument, the Secretary echoed the Board's position. However, both the Board and the Secretary neglect key facts that demonstrate that the appellant's rights to participate and respond were violated here. As in MacKlem, 24 Vet.App. at 66, 71, the appellant was advised of a decision on his claim authorized by RO officials, but, unlike MacKlem, this case involves an RO that surreptitiously commenced review and revision of that decision despite the fact that it had issued final and binding decisional notice to the appellant and his representative pursuant to section 5104(a) and § 3.103(b)(1), (f). Cf. id. at 67, 71 (referring to decision as a "proposal"); see also R. at 320-21. Furthermore, between June 2004 and December 2004, the appellant attempted at least seven times to learn of the status of his decision – including sending a letter to the Chief of the RO – but Effective June 18, 2012, VA's August 23, 2011, revision to § 3.103(c)(1) is rescinded. VA took this action because the prior amendment failed to adhere to notice- and-comment procedures required by the Administrative Procedure Act (APA). See Rules Governing Hearings Before the Agency of Original Jurisdiction and the Board of Veterans' Appeals; Repeal of Prior Rule Change, 77 Fed. Reg. 23,128-01 (Apr. 18, 2012) (codified at 38 C.F.R. pt. 3, 20). 18 22 was given neither an adequate explanation, nor an audience by a final decisionmaker. R. at 320-21, 386. Even more peculiarly, after the appellant formally requested a hearing in June 2006, DRO Marian Peters confessed that (1) the hearing would not be held bypersons with final decisionmaking authority; (2) even though she did not initially approve the June 2004 RO decision (R. at 293), she worked to prevent revision of it; and (3) an unidentified entity known as " the front office" exercised final decisional authority and secured revision of the June 2004 RO decision without the appellant's knowledge or participation. R. at 82-83, 154. Contraryto the Board and the Secretary's position, the fact that the revision of the June 2004 RO decision never left the RO is of no moment. The Federal Circuit in Purple Heart noted that the EAP removed decisional authority from the RO, but central to the court's ruling was the undisputed fact that the EAP prevented "a hearing in the presence of the persons who . . . have final decisional authority for [RO] decisions," refused an "opportunity to respond to the concerns of the deciding official," and resulted in a diminution of benefits that would have otherwise been conferred upon the veteran. 580 F.3d at 1297. That final decisional authority was removed from the RO was merely incidental to the dictates of the EAP, and its relevance to this matter is limited in light of the fact that the RO bound itself to the dictates of the June 2004 RO decision pursuant to § 3.104(a).19 TheCourt cannottolerateasimilarlyopaque,obfuscatoryrevisionprocess in thiscasemerely because VA saw fit to confine its conduct to the agency of original jurisdiction. Indeed, the right to a hearing before persons with "original determinative authority" guaranteed in § 3.103(c)(1), a right on which the Federal Circuit in Purple Heart explicitly relied, 580 F.3d at 1296, is not limited to cases in which the decisionmaker operates outside the RO. To read § 3.103( c)(1) as the Board and Secretary insist would invite subversion. As the Court in MacKlem observed, 24 Vet.App. at 72, VA is encouraged to implement efficiencyandefficacymeasures in theadjudicationprocess, suchassupervisoryreviewoffront-line adjudicators. The Court's holding today is no impediment to such innovations. Indeed, the record 19 The EAP was challenged pursuant to 38 U.S.C. § 502, which provides for direct review of actions of the Secretary. Purple Heart, 580 F.3d at 1294 n.1 (" An action of the Secretary to which section 552(a)(1) or 553 of title 5 (or both) refers is subject to judicial review. Such review shall be in accordance with chapter 7 of title 5 and may be sought only in the United States Court of Appeals for the Federal Circuit."). 23 demonstrates that the June 2004 RO decision was authorized by rating specialist "Durkin," DRO "Spurlock," and, consistent with the review procedures for rating decisions granting entitlement to large retroactive awards, a designee of the Chief of the RO. R. at 293; see also M21-1, pt. VI, ch. 3, para. 3.07. If further review was required, the RO was empowered to undertake such review pursuant to § 3.105(a), but it was not permitted to introduce "a secret adjudication [in]to a non- adversarial system." MacKlem, 24 Vet.App. at 72. This case presents a disturbing encroachment upon the appellant's rights to participate and respond codified at 38 C.F.R. § 3.103(c)(1) and vindicated in Purple Heart. Accordingly, consistent with MacKlem, 24 Vet.App. at 71-72, the January 2005 RO decision is void ab initio and the April 2008 Board decision relying on the January 2005 RO decision must be set aside as "not in accordance with law." Id. (citing Brown v. Brown, 5 Vet.App. 413, 422 (1993)); cf. Schafrath v. Derwinski, 1 Vet.App. 589, 595-96 (1991) (An "ultra vires action of [the Board] Chairman 'must be treated as though it had never been taken.'" (emphasis in original) (citing In Re Fee Agreement of Smith, 1 Vet.App. 492, 496 (1991) (per curiam))). On remand, the appellant must therefore be placed in receipt of the favorable and effective June 2004 RO decision. See MacKlem, 24 Vet.App. at 71 ("[T]he proper remedy is to place the appellant in the position he was in before the EAP, in receipt of a favorable decision, even if that position is erroneous."). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the Court holds that (1) the June 2004 RO decision is binding upon VA; and (2) the April 2, 2008, Board decision is set aside. The Court also reverses the findings of the Board's June 29, 2011, supplemental decision relating to the draft status of the June 2004 RO decision and whether that decision was accompanied by a notice of appellate rights. Accordingly, the Board's April 2, 2008, decision is SET ASIDE and the Board's June 29, 2011, supplemental decision is REVERSED IN PART and AFFIRMED IN PART, and the matter is REMANDED for action consistent with this opinion. 24 KASOLD, Chief Judge, concurring in the result: I agree with my colleagues that Mr. Sellers is entitled to an effective date for benefits for his RP disease earlier than February 5, 2004, albeit for different reasons. Specifically, I cannot agree with the majority's holding that the Board clearly erred in its supplemental 2011 finding20 that the June 2004 RO decision was not binding because it was not issued to Mr. Previous HitSellersNext Hit in the normal course of business. The majority hold that, because Mr. Previous HitSellersNext Hit and his representative actually received the June 2004 RO decision and a notification letter, that decision was binding regardless of how he received it. But, the " notification letter" cited by the majority is not addressed to Mr. Previous HitSellersNext Hit, is undated, purportedly awards Mr. Previous HitSellersNext Hit financial assistance in purchasing an automobile, and does not mention an award of benefits based on CUE. Moreover, the claims file only contains the copy sent by Mr. Previous HitSellersNext Hit. There is no indication that this notification was ever issued by the Secretary or that it related to the June 2004 RO decision denying CUE. Succinctly stated, the Board's finding that the June 2004 RO decision was not final because it was not issued in the normal course of business is plausible based on the record of proceedings and I do not have a "firm conviction" that the Board erred in that finding. See 38 U.S.C. § 7261(a)(4); 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))). I also disagree with the majority's views that only actual receipt – no matter how transmitted or obtained – matters in determining whether a decision has been issued and is binding. Not only doesthis viewopenapandora's box ofmistakenlyreleasedorfraudulentlyacquireddrafts, especially undertheSecretary's currentprovisionthatrepresentatives mayreviewdecisionsbeforetheirrelease, see M21-1, pt. VI, ch. 2, para. 2.05, but the cases cited in support of the majority's view are inapposite. More specifically, Ashley and Clark found defects in transmission irrelevant to veterans' assertions that their Notices of Appeal were untimely; they do not find that a decision never transmitted in the normal course of business is binding. See Ashley v. Derwinski, 2 Vet.App. 62, 65 20 The Board's 2011 supplemental decision was rendered at the request of the Court and focuses on the processing of Mr. Sellers's request for revision. 25 (1992) (claimant arguing that "the 120-day filing period . . . did not begin to run . . . , because the B[oard] failed to meet its statutory obligation to mail a copy of the decision to her representative"); see also Clark v. Principi, 15 Vet.App. 61, 63 (2001) (claimant arguing that his Notice of Appeal was timely because the Board decision was sent to the wrong address). Accordingly, I would affirm the 2011 supplemental finding of the Board that the 2004 RO decision was not issued in the normal course of business and therefore is not binding on the Secretary. On the other hand, because the facts found bythe Board do not support its 2008 decision that the 1988 RO decision did not contain CUE, I would reverse the 2008 Board decision. Specifically, the Board found that Mr. Previous HitSellersNext Hit entered service with no indication that he had RP. Although Mr. Sellers's separation examination also did not reflect that he had RP, the Board noted that he was referred for an optometry consultation examination because of complaints of decreased vision. As the Board found, that in-service eye examination report reflects that (1) Mr. Previous HitSellersNext Hit complained of flashing lights and constricted field of vision, (2) Mr. Previous HitSellersNext Hit had retinal pigment epithelial (RPE) defects, and (3) no pathology was found.21 The 2008 Board also noted that a 1982 medical report diagnosed Mr. Previous HitSellersNext Hit with RP and explained that RP is characterized by, inter alia, peripheral visual loss and changes in the back wall of the eye. Despite recognizing this record evidence, the Board inexplicably and summarily concluded that the evidence at the time of the 1988 RO decision reflected no competent evidence that RP manifested during service. The Board further found no evidence of a specific, in-service diagnosis of RP, but it failed to recognize that there is no requirement that a veteran be diagnosed in service for a disease to be service connected. Indeed, the Board's focus on the timing of the diagnosis – rather than the manifestation of the symptoms – contravenes precedent. See DeLisio v. Shinseki, 25 Vet.App. 45, 56 (2011) ("[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition . . . ."). 21 As the majority note, RPE defects are defects of "a layer of pigmented epithelium that is the outer of the two parts of the optic part of the retina . . . extending from the entrance of the optic nerve to the pupillary margin of the iris," and RP is "a group of diseases, frequently hereditary, marked byprogressive loss of retinal response . . . , retinal atrophy, attenuation of the retinal vessels, and clumping of the pigment, with contraction of the field of vision." DORLAND'S at 1781, 1634. 26 Moreover, the record reflects that the 1988 RO did not denybenefits because Mr. Previous HitSellersNext Hit did not have RP. Rather, the RO denied benefits because Mr. Sellers's RP was considered a constitutional ordevelopmental abnormality(CDA)thatwasinheritedandnot aggravatedin service. See R. at 452 (1988 RO decision stating: "Vet's [RP] is a CDA, not aggravated in service."). This view – that Mr. Sellers's RP was a CDA – was consistent with the Secretary's view at the time that RP was presumed to be hereditary if there was no evidence otherwise. See R. at 107 (VA Office of General Counsel Opinion 1-85 (Mar. 5, 1985) (reissued as VA Gen. Coun. Prec. 82-90 (July 18, 1990)), stating that "VA adjudicators ordinarily are justified in finding that [a congenital, developmental or familial in origin] disease, by its very nature, preexisted the claimant's military service"), 122 (VA Gen. Coun. Prec. 11-1999 (Sept. 2, 1999), noting that the M21-1, ch. 50, para. 50.09(d) (Jan. 3, 1986), instructed that "[i]f no other cause is shown for [ RP], consider it to be hereditary, and determine service connection on whether or not there has been aggravation of this preexisting condition during service."); cf. 38 U.S.C. § 7104(c) (Board is bound byGeneral Counsel opinions). However, although the Secretary's presumption that RP is hereditary might be appropriate for many purposes, it cannot be used to defeat the congressionally mandated presumption of soundness. See 38 U.S.C. § 1111. Otherwise stated, because Mr. Previous HitSellersNext Hit entered service without anynotation that he had RP, his in-service manifestation of RP is presumed serviceconnected unless it is shown by clear and unmistakable evidence that RP existed prior to service and was not aggravated byservice. Id. Here, the Board found no evidence, and the record of proceedings reflects no clear and unmistakable evidence, that RP manifested prior to service, and the only medical evidence before the 1988 RO on whether Mr. Previous HitSellersNext Hit had a family history of RP found "no specific evidence of similar problems in other members of your family." R. at 500 ( 1982 medical report). In sum, Mr. Previous HitSellersNext Document would have been awarded service connection in 1988 but for the RO's presumption that RP was hereditary. Accordingly, I find the Board's 2008 determination that the 1988 RO decision did not contain CUE to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and I would reverse it – which is the basis for my concurring in the result of the majority's decision. See Joyce v. Nicholson, 19 Vet. App. 36, 42-43 (2005) (Board decisions on CUE motions are reviewed under the "arbitrary, capricious, an abuse of discretion, or 27 otherwise not in accordance with law" standard); Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993) (demonstrating CUE requires showing that the outcome would have been manifestly different but for the error); see also Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) ("[ R]eversal is the appropriate remedy when the only permissible view of the evidence is contrary to the Board's decision.").22 One differentiating effect of a Board reversal and remand based on CUE in the 1988 RO decision as opposed to a Board reversal and reinstatement of the 2004 RO decision is that reversal by the Court predicated on CUE in an earlier decision does not permit further revision of that earlier decision by the Secretary. Compare Winsett v. Principi, 341 F. 3d 1329, 1331 (Fed.Cir.2003) (holding that CUE may not be brought after an underlying issue has been adjudicated by a court and noting that permitting such action "would allow a lower tribunal to review the decision of a higher tribunal") with 38 C.F.R. §§ 3.104(a), 3.105(a) (permitting revision of final RO decisions based on CUE). 28 22

Acevedo v. Shinseki, No. 10-3402; Citation Solely for Persuassive Value

Excerpt from Decision below: "In light of this Court's unique ability to issue nonprecedential single judge memorandum decisions, a practice that results in over 1500 nonprecedential decisions each year, and each of these decisions is rendered as a single-judge disposition based on existing precedents (which can be cited), the Court declines to relax its historic practice of prohibiting the citation of such decisions." Excerpt from Dissent below: "The majority grant the Secretary's motion to strike the appellant's citation in his brief to a nonprecedential decision of the Court even though it was cited solely for its persuasive value because they believe such citation is prohibited by Rule 30 of our Court's Rules of Practice and Procedure." "However, our Rule explicitly prohibits citing a single-judge decision as precedent and contains no specific prohibition to citing such decision for its persuasive value. U.S. VET. APP. R. 30(a)." "See FEDERAL RULE OF APPELLATE PROCEDURE (FRAP), Rule 32.1 ("A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (I) designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent,' or the like . . . ."). Although we are not bound by the FRAP, it certainly seems quite bizarre – Alice in Wonderland like – that the Supreme Court sanctions the citing of our single-judge decisions in the other federal courts, but the majority deem such citation – even for persuasive value – prohibited in the very Court on which the single-judges sit. L. Carroll, Alice in Wonderland and Through the Looking Glass 198 (Messner 1982) (Alice stating: "It would be so nice if something would make sense for a change.")." ========================== ---------------------------------------------------- Designated for electronic publication only. UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3402 BERNADINE ACEVEDO, V. APPELLANT, ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge, and MOORMAN and LANCE, Judges. ORDER Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. On April 24, 2012, the appellant filed a letter concerning a non- precedential decision from this Court. That same day, the Secretaryfiled a motion to strike the letter pursuant to Rule 30 of this Court's Rules of Practice and Procedure. U.S. VET. APP. R. 30(a). The appellant opposed the Secretary's motion. In the April 24, 2012, letter, the appellant cites to Page v. Shinseki, No. 11-684, slip op. at 3-4 (Vet. App. Apr. 23, 2012), and argues that "circumstances that arose in Page concerning the applicability of the recently-amended 38 C.F.R. § 3.304(f)(3) are present" in the case here on appeal. She further states that this material is submitted not as precedential authority, but for persuasive effect. Citation of nonprecedential decisions is proscribed by Rule 30. MacKlem v. Shinseki, 24 Vet.App. 63, 70 (2010). Although our dissenting colleague references the Federal Rules of Appellate Procedure, this Court is not bound by those rules but has the authority to set its own rules. 38 U.S.C. § 7264(a); see Bailey v. West, 160 F.3d 1360, 1367 (Fed. Cir. 1998) (en banc) (stating that the Federal Rules of Appellate Procedure are inapplicable to this Court); Bove v. Shinseki, 25 Vet.App. 136, 142 (2011). In light of this Court's unique ability to issue nonprecedential single judge memorandum decisions, a practice that results in over 1500 nonprecedential decisions each year, and each of these decisions is rendered as a single-judge disposition based on existing precedents (which can be cited), the Court declines to relax its historic practice of prohibiting the citation of such decisions. Therefore, the Court will grant the Secretary's motion to strike. Upon consideration of the foregoing, it is ORDERED that the Secretary's April 24, 2012, motion to strike is GRANTED. DATED: June 27, 2012 KASOLD, Chief Judge, dissenting. The majority grant the Secretary's motion to strike the appellant's citation in his brief to a nonprecedential decision of the Court even though it was cited solely for its persuasive value because they believe such citation is prohibited by Rule 30 of our Court's Rules of Practice and Procedure. However, our Rule explicitly prohibits citing a single-judge decision as precedent and contains no specific prohibition to citing such decision for its persuasive value. U.S. VET. APP. R. 30(a). Although the majority relyon MacKlem v. Shinseki, 24 Vet.App. 63, 70 (2010 ), as authority for their view that the Court has had an "historic practice of prohibiting the citation of such decisions," MacKlem was issued fairly recently in the history of the Court and only broadly states that "citation to nonprecedential opinions is not permitted by the Court's Rules of Practice and Procedure," without any specific explanation why the citation in that case was not permitted. This broad statement, however, is followed by the specific quote from Rule 30 that a party "may not cite as precedent any action designated as nonprecedential by the Court" ( emphasis added), leading one to conclude that the nonprecedential opinion cited in MacKlem must have been cited for its precedential value. Moreover, it cannot be questioned that MacKlem is overly broad in its pronouncement that nonprecedential opinions may never be cited; indeed, Rule 30 explicitly allows citation of such opinions even for precedential value, when relevant to the application of the law of the case. U.S. VET. APP. R. 30(a). I see no basis for reading into our Rule 30 a prohibition that otherwise clearly does not exist, particularly when any and all of our Rules are subject to suspension at any time for good cause. U.S. VET. APP. R. 2. I also note that the majority's reference to 1500 non-precedential, single-judge decisions being issued each year as the rationale for rejecting the appellant's reference to a single-judge decision for its persuasive value is singularly unpersuasive, given that any and all of the thousands of non-precedential decisions issued by other courts, including our own, may be cited in briefing before the other federal appellate courts. See FEDERAL RULE OF APPELLATE PROCEDURE (FRAP), Rule 32.1 ("A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (I) designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent,' or the like . . . ."). Although we are not bound by the FRAP, it certainly seems quite bizarre – Alice in Wonderland like – that the Supreme Court sanctions the citing of our single-judge decisions in the other federal courts, but the majority deem such citation – even for persuasive value – prohibited in the very Court on which the single-judges sit. L. Carroll, Alice in Wonderland and Through the Looking Glass 198 (Messner 1982) (Alice stating: "It would be so nice if something would make sense for a change."). PER CURIAM. 2

Frederick v. Shinseki, No. 2011-7146 (Decided: July 3, 2012); Dependency and Indemnity Compensation Benefits

Excerpt from decision below: "Because the Veterans Court misinterpreted the relevant statute, we reverse." "This appeal calls upon us to interpret subsection (e) of the Act, and in the process to answer two questions: does the subsection apply to Mrs. Frederick, and if so, what is the application filing requirement that Mrs. Frederick must meet?" "We need not recite the legislative history of subsection (e), admitted by Mrs. Frederick as adverse to her case, by rote, because when the present tense of “submits” is coupled with the correct meaning of “such benefits,” subsection (e) of section 101 is unambiguous. Mrs. Frederick’s interpretation of subsection (e), as made before the Veterans Court and repeated here, must FREDERICK v. DVA 12 fail for three reasons, each tied to the text of the statute. Taken together, these statutory provisions demonstrate both that Mrs. Frederick is covered by subsection (e) and that she was required to file an application for DIC benefits, based on her new-found eligibility, within the one year period between December 16, 2003, and December 16, 2004. A First, Mrs. Frederick cannot overcome the correct meaning of “submits an application for such benefits.” As the Veterans Court acknowledged, the statutory language “submits an application for such benefits” in the present tense connotes that a post-enactment application is necessary to secure DIC benefits based on remarriage after the age of 57. The Veterans Court, however, erred in only applying this prospective filing requirement to individuals who remarried after age 57 and who had never earlier applied for and received DIC benefits (group (b) above). “Such benefits” necessarily refers to DIC benefits that became available for the first time by virtue of subsection (e) for individuals who remarried after the age of 57. “Such benefits” are the same whether in the hands of an individual in group (a) or group (b), as described above. An “application for such benefits” could only be submitted after “such benefits” came into existence. “Submits” therefore necessarily is forward-looking from the date of enactment of the Act. Such interpretation is consistent with the Dictionary Act, 1 U.S.C. § 1, which notes that “unless the context indicates otherwise[,] . . . words used in the present tense include the future as well as the present” but not the past tense, and Legislative Drafting Manuals, which prefer the present tense. See Senate Office of the Legislative Counsel, Legislative Drafting FREDERICK v. DVA 13 Manual, § 103(a), p. 4 (1997); House Legislative Counsel’s Manual on Drafting Style, HLC No. 104-1, § 102(c), p. 2, and § 351(f), p. 60 (1995). Although present tense verbs, like “submits,” are not ordinarily thought to encompass the past, the Supreme Court in Carr v. United States, 130 S. Ct. 2229, 2236 n.5 (2010), noted that “there may be instances in which ‘context’ supports this sort of omnitemporality.” The context here, however, leaves no room to interpret “submits an application for such benefits” to include an application submitted in 1970. Because the rights Mrs. Frederick seeks to vindicate did not exist in 1970, an application submitted then could not suffice to secure rights first created in 2004. ============================ Dissent: "The majority holds that a second application for DIC benefits should have been filed by Mrs. Frederick during a narrow one-year window, between December 16, 2003 and December 16, 2004; that is, Congress created a bounded period of one year during which applications under the Act should have been filed. Yet, the Act neither prescribes filing “during,” “within,” or “between” two dates, nor requires “a reapplication,” “a new application,” or “another application.” In clear and plain language, the Act provides only that “an application” must be submitted “not later than” December 16, 2004. The Veterans Court was correct that this clear language should control. The majority works hard to establish that because the word “submits” is drafted in the present tense, it indicates 2 “(e) APPLICATION FOR BENEFITS.— In the case of an individual who but for having remarried would be eligible for benefits under title 38, United States Code, by reason of the amendment made by subsection (a), and whose remarriage was before the date of enactment of this Act and after the individual had attained age 57, the individual shall be eligible for such benefits by reason of such amendment only if the individual submits an application for such benefits to the Secretary of Veterans affairs not later than the end of the one-year period beginning on the date of enactment of this Act.” FREDERICK v. DVA 4 a fully prospective requirement, i.e., the filing of a new application for DIC benefits. See Maj. Op. at 12-13. (“Submits . . . necessarily is forward-looking from the date of enactment of the Act.”). But the Supreme Court has recognized that while not the typical understanding in other circumstances, a word drafted in the present tense may also be used to encompass past events in “instances in which ‘context’ supports this sort of omnitemporality.” Carr v. United States, 130 S. Ct. 2229, 2236 n.5 (2010). Indeed, English-language scholars know well that the present tense may refer to the past, a usage grammarians call the “historical present.” See R. Pence and D. Emery, A Grammar of Present-Day English, 262-63 (2d ed. 1963). The historical present uses the present tense commonly in narratives to express immediacy. Id. Furthermore, the present tense may be used when time is meant to remain indefinite.3 Id. In this light, I believe that Congress used the present tense word “submits” precisely because it did not wish to limit § 101(e)’s reach to either past or future applications. See Coal. for Clean Air v. U.S. Envtl. Prot. Agency, 971 F.2d 219, 224-25 (9th Cir. 1992) (“The present tense is commonly used to refer to past, present, and future all at the same time.”); In re Stratford of Tex., Inc., 3 The majority acknowledges that Congressional drafting manuals prefer the present tense. Maj. Op. at 12. For example, Congress drafted 42 U.S.C. § 7413(c)(2) using the present tense: “any person who knowingly—(A) makes any false material statement, . . . (B) fails to notify or report as required under this Act; . . .” 42 U.S.C. § 7413(c)(2) (emphasis added). The Ninth Circuit observed that in this instance “Congress uses the present tense to establish criminal liability . . . . Yet clearly the 1990 Amendments do not forgive criminal violations that occurred prior to the Amendments just because Congress speaks in the present tense.” Coal. for Clean Air v. U.S. Envtl. Prot. Agency, 971 F.2d 219, 225 (9th Cir. 1992). FREDERICK v. DVA 5 635 F.2d 365, 369 (5th Cir. 1981) (“[T]he present tense of a verb may sometimes refer to the past and to the future as well as to the present.”). Such “omnitemporality” makes sense in this context, signaling a congressional intent to recognize that eligibility may be retained by anyone who filed prior to the date of enactment, or within a year thereafter. When “submits an application” is added to the express deadline language “not later than,” the meaning is irrefutably clear—only one application for DIC benefits is required, filed any time before December 16, 2004. United States Court of Appeals for the Federal Circuit __________________________ RUTH HILL FREDERICK, Claimant-Appellee, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellant. __________________________ 2011-7146 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in case No. 09-433. __________________________ Decided: July 3, 2012 __________________________ PAUL M. SCHOENHARD, Ropes & Gray LLP, of Washington, DC, argued for claimant-appellee. JOSHUA E. KURLAND, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondentappellant. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and AMANDA R. BLACKMON, Attorney, FREDERICK v. DVA 2 United States Department of Veterans Affairs, of Washington, DC. __________________________ Before RADER, Chief Judge, CLEVENGER and REYNA, Circuit Judges. Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by Circuit Judge REYNA. CLEVENGER, Circuit Judge. The Secretary of the Department of Veterans Affairs (“Secretary”) appeals from the judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”) that Mrs. Ruth Hill Frederick is entitled to dependency and indemnity compensation (DIC) benefits. Frederick v. Shinseki, 24 Vet. App. 335 (2011). Because the Veterans Court misinterpreted the relevant statute, we reverse. I As an initial matter, we must attend to our jurisdiction over this appeal. In this case, the Veterans Court did not enter a final judgment ending the litigation. Instead, it remanded the case for a determination of the proper effective date for the benefits it conferred on Mrs. Frederick. Ordinarily, we exercise jurisdiction under 38 U.S.C. § 7292(a) only over final judgments by the Veterans Court. Adams v. Principi, 256 F.3d 1318, 1320-21 (Fed. Cir. 2001). In limited circumstances, however, we have jurisdiction to hear non-final judgments by the Veterans Court. We spelled out those circumstances in Williams v. Principi, 275 F.3d 1361 (Fed. Cir. 2002). Thus, when the Veterans Court has rendered a clear and final decision on a legal issue that will directly govern the remand proceedings, and there is a substantial risk that FREDERICK v. DVA 3 the issue will not survive a remand, we may entertain the appeal. Id. at 1364. Those requirements are met here, and we may proceed because the appeal presents the question of the proper interpretation of a statute. See 38 U.S.C. § 7292(a); Forshey v. Principi, 284 F.3d 1335, 1351 (Fed. Cir. 2002) (en banc). We review legal determinations by the Veterans Court independently without deference. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991). II Mrs. Frederick was previously married on February 25, 1961, to World War II veteran Fred T. Hill. Mr. Hill died on May 26, 1970, and upon his death, Mrs. Hill became entitled to DIC benefits as the surviving spouse of a veteran whose death resulted from service-related injury or disease. See 38 U.S.C. §§ 1310-1318. Her entitlement continued until December 4, 1986, when at the age of 57 she was remarried to Mr. Spencer Frederick. In 1986, and until January 1, 2004, the law provided that a surviving spouse receiving DIC benefits lost entitlement to those benefits upon remarriage. See 38 U.S.C. § 101(3) (defining “surviving spouse” in part as one who “has not remarried”). Consequently, when Mrs. Frederick notified the DVA of her remarriage, her DIC benefits were terminated. On December 16, 2003, Congress enacted the Veterans Benefits Act of 2003 (“Act”), with an effective date of January 1, 2004 (“effective date”). The purpose of the Act was to improve certain benefits administered by the Secretary, including DIC benefits to surviving spouses. The legislative history of the Act reveals that Congress was concerned that the existing law, which terminated DIC benefits upon remarriage of a surviving spouse, stood as disincentive to remarriage for older surviving spouses. FREDERICK v. DVA 4 See H.R. Rep. No. 108-211, at 12 (2003), reprinted in 2004 U.S.C.C.A.N. 2312, 2315. Consequently, Congress considered revising the law to overcome the existing law that terminated DIC benefits upon remarriage. At first, the House of Representatives considered such a revision for surviving spouses who remarried after the age of 55. Upon a compromise with the Senate, the age was raised to 57. The revision necessary to accomplish this goal was made by an amendment to 38 U.S.C. § 103(d)(2)(B), which before amendment provided certain medical care benefits to surviving spouses who remarried after the age of 55. The Act retained those medical benefits and added specific language to section 103(d)(2)(B) that secures eligibility for DIC benefits for surviving spouses who remarry after the age of 57. See Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651, 2652 (codified at 38 U.S.C. § 103(d)(2)(B)) (“The remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of [DIC] benefits to such person as the surviving spouse of the veteran.”). Thus, after the effective date, any surviving spouse who remarries after the age of 57 (but not one who remarries at an earlier age) remains eligible for DIC benefits. Congress also provided new DIC eligibility for surviving spouses who remarried after the age of 57, but before the date of enactment of the Act, in subsection (e) of section 101 of the Act. Id. at 2653. Subsection (e), which is uncodified, reads as follows: (e) APPLICATION FOR BENEFITS.— In the case of an individual who but for having remarried would be eligible for benefits under title 38, United States Code, by reason of the amendment made by subsection (a), and whose remarriage FREDERICK v. DVA 5 was before the date of enactment of this Act and after the individual had attained age 57, the individual shall be eligible for such benefits by reason of such amendment only if the individual submits an application for such benefits to the Secretary of Veterans affairs not later than the end of the oneyear period beginning on the date of enactment of this Act. Subsection (e) refers to an individual who remarried before the effective date of the Act and who “but for having remarried would be eligible for [DIC] benefits . . . by reason of the amendment made by subsection (a).” Id. The reference to the amendment made by subsection (a) thus defines a class of surviving spouses who remarry after the age of 57 and who thus become eligible for DIC benefits as a result of the Act. This class necessarily includes two groups of surviving spouses who remarried after the age of 57: (a) those who previously applied for and received DIC benefits, and whose remarriage before the effective date of the Act destroyed their eligibility for DIC benefits (such as Mrs. Frederick), and (b) those who for whatever reason never applied for DIC benefits upon the death of their veteran spouse, but who remarried before the effective date of the Act, and thereby lost eligibility for DIC benefits. The text of subsection (e) further provides that “the individual [whether in group (a) or (b)] shall be eligible for such benefits by reason of such amendment only if the individual submits an application for such benefits to the Secretary of Veterans Affairs not later than the end of the one-year period beginning on the date of enactment of this Act.” Id. On November 8, 2007, almost three years after enactment of the above-quoted legislation, Mrs. Frederick FREDERICK v. DVA 6 wrote the DVA asking it to begin “my DIC again. It was stopped Dec. 1986.” III The Nashville, Tennessee, Regional Office of the Department of Veterans Affairs (DVA) treated Mrs. Frederick’s 2007 letter as an informal application for DIC benefits. On February 20, 2008, the Regional Office denied Mrs. Frederick’s application as untimely, stating that “all claims for restoration of DIC benefits terminated due to remarriage on or after age 57 had to have been submitted in writing during the period of December 16, 2003 [the enactment date] to December 16, 2004.” Mrs. Frederick appealed to the Board of Veterans Appeals. She argued that prior to 2007, she had no way of knowing of her eligibility for restoration of her discontinued DIC benefits, and that the Secretary had breached his duty to notify her of her eligibility. Because of the Secretary’s alleged breach, Mrs. Frederick argued that her informal application should have been accepted. The Board rejected her notice argument. The Board reasoned that Mrs. Frederick’s “application for such benefits” was untimely, and therefore ineffective. IV Mrs. Frederick appealed to the Veterans Court. She argued entitlement to DIC benefits as a matter of law under subsection (e) because (1) she is a surviving spouse eligible for benefits “but for having remarried,” (2) she was at least 57 years old at the time of her remarriage, (3) her remarriage was before the date of enactment of the Act, and (4) her 1970 application for DIC was filed before December 16, 2004. In response, the Secretary argued that eligibility could not be satisfied by an application filed before the FREDERICK v. DVA 7 enactment of the statute, because the statutory language is written in the present tense (“only if the individual submits an application”) and because the Act set forth a requirement that an application be filed in a window of time, beginning on the date of enactment of the Act and ending a year later. In contrast, Mrs. Frederick’s view treated the application timing requirement as an end date: so long as an application was filed before the end date, entitlement is satisfied. Furthermore, the Secretary recited numerous instances in the legislative history of subsection (e) that clearly show the intent of legislators that the filing period in subsection (e) is a window of time, not merely an end date that could be satisfied by an application filed before the enactment date. See, e.g., H.R. Rep. No. 108-211, at 12, 34 (“[S]urviving spouses who remarried . . . before this provision is enacted would have one year to apply for reinstatement of their DIC benefit.”); 149 Cong. Rec. S15133 (daily ed. Nov. 19, 2003) (same); 149 Cong. Rec. H11716 (daily ed. Nov. 30, 2003) (same). Although the Veterans Court appreciated the force of the Secretary’s argument that the statute’s filing obligation is prospective from the enactment date, as well as the import of the legislative history on that issue, the Veterans Court saw subsection (e) of the Act in a different light. It agreed with Mrs. Frederick that the statute creates an end date, not a window of time, for submission of an application for DIC benefits. But it held that the application requirement is only applicable to a remarried spouse who had not previously applied for and received DIC benefits (group (b) described above). Thus, the Veterans Court expressly held that “this provision [the application requirement] does not apply to a remarried surviving spouse, such as Mrs. Frederick, seeking reinstatement of DIC.” Frederick, 24 Vet. App. at 342. The Veterans Court reached that conclusion because it treated Mrs. Frederick FREDERICK v. DVA 8 as seeking reinstatement of previous DIC benefits, not as claiming eligibility for newly-conferred DIC benefits. The Veterans Court thus reasoned that Mrs. Frederick’s reinstatement request should be governed by 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114, which permit the Secretary to take the initiative to establish effective dates for benefits that have been enhanced by a change in law. In a nutshell, the Veterans Court read the relevant statute to set forth an end date, December 16, 2004, for applications to gain DIC benefits, with the application requirement applying only to the group (b) individuals described above. The Veterans Court bolstered its two-part decision in several ways. First, in deciding that subsection (e) creates a filing end date time, the Veterans Court relied on the distinction between the language in subsection (e) and the language of an existing statutory provision that was amended by subsection (f) in section 101 of the Act. The language of the existing provision created a filing window by stating that the application under the provision must be filed “during the 1-year period ending on the effective date.” In subsection (f) of the Act, this “during” language was changed to “before the end of the one-year period beginning on the date of enactment.” This amendment resulted in the same timing language as is found in subsection (e). From this, the Veterans Court reasoned that Congress knew how to create a window filing requirement, as it had in the language amended by subsection (f), and because it used different language in subsection (e), that section could not create a window filing time. Second, the Veterans Court viewed the argument that subsection (e) presents a window filing requirement as inconsistent with 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114. Because nothing in those provisions restricts the FREDERICK v. DVA 9 time when the Secretary can set an effective date for a benefit enhanced by a change in law, the Veterans Court surmised that reading a strict window filing time into subsection (e) would conflict with those provisions. Third, the Veterans Court analogized Mrs. Frederick’s situation to the situation in which a surviving spouse became ineligible for DIC benefits by remarriage before the effective date but re-qualified for such benefits upon the termination of the second marriage, whether by death or divorce. Citing 38 C.F.R. § 3.55(a) and cases in which the Secretary restored benefits on the termination of the second marriage upon informal request by the surviving spouse, the Veterans Court stated that in those situations, the surviving spouse was not required to file an application. If the surviving spouse who reacquires DIC benefits on the termination of a disqualifying marriage does not have to file an application for restoration, the Veterans Court surmised that Mrs. Frederick too should not be required to file an application. Because the Veterans Court saw Mrs. Frederick’s case as a request for establishment of an effective date for the benefits afforded to her by the Act, it remanded the case for ascertainment of a correct effective date. The Secretary timely appealed to this court. V Before this court, the parties present again their conflicting interpretations of the legislation which (1) created a right for surviving spouses who remarry after the age of 57 to retain DIC benefits that otherwise would cease upon remarriage, (2) extended that right to surviving spouses who remarried after the age of 57 before enactment of the legislation, and (3) set out an explicit requirement that the an individual who remarried after the age 57 and before the date of enactment would be eligible for such FREDERICK v. DVA 10 benefits only if the individual submits an application for such benefits in the specified time. Mrs. Frederick continues to argue that the plain language of the statute only requires an application to have been filed before the calendar date December 13, 2004. Consequently, she interprets the one year calculation in the statute to refer only to its end point, one year after enactment of the statute. So long as an application for DIC benefits has been filed before that date, as was her 1970 initial application, she maintains the statute’s requirements are met. She posits that this reading must be correct because the DVA has created no forms for reinstatement of DIC benefits based on subsection (e)— instead its only relevant form is for initial application of benefits. Mrs. Frederick rejects the holding of the Veterans Court that she is not even covered by subsection (e), describing that holding as harmless error. At oral argument, Mrs. Frederick argued that the admittedly adverse legislative history must be overlooked because of what she believes is the correct interpretation of the statute. The Secretary argues that the statute imposes a prospective application filing requirement binding on all individuals seeking DIC benefits due to remarriage before the effective date of the Act and after the age of 57. The Secretary insists that subsection (e) must apply to both groups (a) and (b) described above, and that both should be treated the same. An application received any time before the Act’s enactment, says the Secretary, is a nullity insofar as the Act’s bestowal of eligibility to remarried surviving spouses is concerned. Before the Act, Mrs. Frederick was ineligible for benefits, according to the Secretary, and it is only because of the Act that, effective January 1, 2004, Congress created a new avenue for eligibility. In the Secretary’s view, an application for FREDERICK v. DVA 11 benefits, filed during a time when such benefits were understood to terminate upon remarriage, cannot create an entitlement to the new eligibility created by the Act. The Secretary also argues that the Veterans Court misunderstood the import of the amendment made in subsection (f) and erred in seeing the case as governed by 38 U.S.C. § 5110(g). Further, the Secretary correctly posits that the rule of interpretative doubt favoring veterans in Brown v. Gardner, 513 U.S. 115 (1994), has no force if a statute properly interpreted leaves no ambiguity as to its meaning. The Secretary maintains that the Veterans Court erred with its analogy to surviving spouses whose DIC benefits are restored upon termination of a disqualifying second marriage, and argues that should any doubt as to the meaning of the statute exist, we should be guided by the legislative history. VI This appeal calls upon us to interpret subsection (e) of the Act, and in the process to answer two questions: does the subsection apply to Mrs. Frederick, and if so, what is the application filing requirement that Mrs. Frederick must meet? Statutory interpretation of course starts with the words of a statute, which must be interpreted in the context of the Act as a whole. Where ambiguity persists after application of the standard tools of statutory construction, legislative history may be used to resolve any such ambiguity. We need not recite the legislative history of subsection (e), admitted by Mrs. Frederick as adverse to her case, by rote, because when the present tense of “submits” is coupled with the correct meaning of “such benefits,” subsection (e) of section 101 is unambiguous. Mrs. Frederick’s interpretation of subsection (e), as made before the Veterans Court and repeated here, must FREDERICK v. DVA 12 fail for three reasons, each tied to the text of the statute. Taken together, these statutory provisions demonstrate both that Mrs. Frederick is covered by subsection (e) and that she was required to file an application for DIC benefits, based on her new-found eligibility, within the oneyear period between December 16, 2003, and December 16, 2004. A First, Mrs. Frederick cannot overcome the correct meaning of “submits an application for such benefits.” As the Veterans Court acknowledged, the statutory language “submits an application for such benefits” in the present tense connotes that a post-enactment application is necessary to secure DIC benefits based on remarriage after the age of 57. The Veterans Court, however, erred in only applying this prospective filing requirement to individuals who remarried after age 57 and who had never earlier applied for and received DIC benefits (group (b) above). “Such benefits” necessarily refers to DIC benefits that became available for the first time by virtue of subsection (e) for individuals who remarried after the age of 57. “Such benefits” are the same whether in the hands of an individual in group (a) or group (b), as described above. An “application for such benefits” could only be submitted after “such benefits” came into existence. “Submits” therefore necessarily is forward-looking from the date of enactment of the Act. Such interpretation is consistent with the Dictionary Act, 1 U.S.C. § 1, which notes that “unless the context indicates otherwise[,] . . . words used in the present tense include the future as well as the present” but not the past tense, and Legislative Drafting Manuals, which prefer the present tense. See Senate Office of the Legislative Counsel, Legislative Drafting FREDERICK v. DVA 13 Manual, § 103(a), p. 4 (1997); House Legislative Counsel’s Manual on Drafting Style, HLC No. 104-1, § 102(c), p. 2, and § 351(f), p. 60 (1995). Although present tense verbs, like “submits,” are not ordinarily thought to encompass the past, the Supreme Court in Carr v. United States, 130 S. Ct. 2229, 2236 n.5 (2010), noted that “there may be instances in which ‘context’ supports this sort of omnitemporality.” The context here, however, leaves no room to interpret “submits an application for such benefits” to include an application submitted in 1970. Because the rights Mrs. Frederick seeks to vindicate did not exist in 1970, an application submitted then could not suffice to secure rights first created in 2004. Mrs. Frederick would prefer us to interpret “such benefits” as limited to the DIC benefits to which she was entitled in 1970 upon the death of her veteran husband. But the words of the subsection themselves stand in her way. The phrase “such benefits” refers to the change in law made in subsection (a) of the statute and to remarriage “before the date of enactment of this Act and after the individual had attained the age of 57.” And, in addition, the statute provides that “an individual shall be eligible for such benefits by reason of such amendment only if the individual submits an application for such benefits . . . “ (emphasis added). Further, the one-year filing time has a specific beginning—the date of enactment of the statute. There is only one reasonable way to read the relevant words in the statute. Coupled with the present tense of “submits,” the statute must be construed to require an application to be submitted after the date of enactment of subsection (e) and “not later than the end of the one-year period beginning on the date of enactment of this Act.” Indeed, the same “not later than” language creates limited filing periods for filing of reports and other obliga- FREDERICK v. DVA 14 tions imposed on the Secretary in sections 601(a)(3) and 602(b) of the Act. Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651, 2668-69. Thus, we must reject Mrs. Frederick’s view that the application burden imposed on her in subsection (e) is satisfied by an application submitted in 1970. B Second, the interplay of subsections (e) and (f), thought by the Veterans Court to support its decision that subsection (e) sets a timing end date, strongly supports the Secretary’s view that subsection(e) creates a window filing requirement. As noted above, the Veterans Court understood subsection (f) to replace a window filing requirement with the language enacted in subsections (f) and (e). Therefore, the Veterans Court reasoned that subsection (e) as enacted could not create a window filing requirement. The Veterans Court overlooked the fact that subsection (f) is a technical correction, not intended to change the substantive law being corrected. In the Veterans Benefits Act of 2002, Congress provided that the remarriage after the age of 55 would not bar the furnishing of certain medical benefits to the surviving spouse of a veteran. In order to qualify for such benefits following remarriage after the age of 55, the statute conditioned availability of the medical benefits on the receipt by the Secretary of an application for such medical care “during the 1-year period ending on the effective date specified in subsection (c).” Veterans Benefits Act of 2002, Pub. L. No. 107-330, 116 Stat. 2820, 2821. Subsection (c), however, created an effective date of “60 days after the enactment of this Act.” Id. The law thus created a window of time for receipt of applications to secure the new benefits. The problem with the language of the statute was that the FREDERICK v. DVA 15 window, which lasted for one year, opened even before the legislation was enacted, and closed shortly thereafter. The 2002 law, corrected in 2003, thus created a filing window for securing medical benefits, but opened that window for a mere and almost meaningless 60 days. The object of the amendment made in subsection (f) was to extend the filing period for a longer period. The “during the 1-year period” language that was amended had created the short filing period, whereas the “before the end of the one-year period” simply lengthened the window filing period. Properly understood, the amendment made by subsection (f) did not replace a window filing requirement with an end date filing requirement; instead, the technical correction simply extended the previously flawed window filing time to a meaningful period. C Third, section 701 of the Act underscores that the interplay of subsections (e) and (f) supports the Secretary. Section 701 makes clear, in the context of the statute as a whole, that there is no difference between the meaning of “during” and “before the end of.” Section 701 sets forth time limitations on submission of certain claim information to the Secretary. Section 701(d)(1) states that the Secretary will readjudicate a claim if the request for readjudication is received “not later than the end of the one-year period that begins on the date of the enactment of this Act.” This is the language used in subsection (e). Section 701(d)(4)(A), however, states that the Secretary is not obligated to readjudicate a claim that “is not submitted during the one-year period referred to in paragraph (1).” Section 701 thus shows that Congress did not assign different meanings to “not later than the end of” and “during” for purposes of filing time requirements. Consequently, section 701, together with subsections (e) and (f) of section 101, and coupled with the correct interpretation FREDERICK v. DVA 16 of “submits an application for such benefits,” requires that we interpret subsection (e) to create a filing window for an individual seeking to secure the DIC benefits afforded by the Act. In the words of the statute, the window’s “beginning” is the date of enactment of the Act and its end is “not later than the one-year period beginning on the date of enactment.” The application submission requirement applies to any individual seeking to secure the DIC eligibility created by subsection (e) of the Act, whether or not such an individual had previously enjoyed receipt of DIC benefits. VII The points used by the Veterans Court to bolster its view that Mrs. Frederick is exempt from the Act cannot suffice to overcome subsection (e) as properly interpreted in Part VI above. Contrary to the view of the Veterans Court, 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114 are not necessarily inconsistent with, and do not stand in the way of, the requirement that Mrs. Frederick was required to file an application in the specified window time period. Section 5110(g) permits the Secretary to set the effective date for an award or increase in amount of DIC benefit, where the award or increase in amount results from “any Act or administrative issue.” But any such award or increase cannot be retroactive “more than one year from the date of application therefore or the date of administrative determination of entitlement, whichever is earlier.” For purposes of this appeal, at least, the Secretary agrees that section 5110(g) “contemplates that the [Secretary] may identify and grant previously filed claims that benefit from a new law upon [his] own initiative, [but] it does not relieve claimants from having to file a claim for benefits under a new law when the [Secretary] does not do so.” FREDERICK v. DVA 17 Appellant Br. 26. The Secretary relies on Wells v. Principi, 3 Vet. App. 307, 309 (1992), in which the Veterans Court held that the Secretary is not obliged to seek out beneficiaries of new law. Where the Secretary has not independently granted a new benefit to a previously filed claim, as in Mrs. Frederick’s case, the individual is obliged to apply for the newly-created benefit. The Veterans Court in Wells, and the Secretary in this case, point also to 38 U.S.C. § 5101(a), which requires that a claim must be filed in order for benefits to be paid. Because Mrs. Frederick’s 1970 application for DIC cannot suffice to gain her eligibility that only arose in 2003, enforcing the application requirement of subsection (e) is not necessarily inconsistent with the authority of the Secretary to establish effective dates under section 5110(g). The pertinent regulation, 38 C.F.R. § 3.114 (a)(1) and (3), recognizes the difference between the case in which the DVA initiates a new effective date based on a change in law, and the case in which no such initiative is taken and the individual files an application. The situation facing a DIC recipient who remarried before the Act and whose remarriage terminated (either by death or divorce) is no different from Mrs. Frederick’s situation. The relevant statute, 38 U.S.C. § 5110(k), requires a claim to be filed for reinstatement of benefits upon annulment of a marriage, and 38 U.S.C. § 5110(l) sets the effective date for benefits arising from termination of a remarriage by death or divorce “if application therefore is received within one year from such termination.” In short, the Veterans Court overlooked the requirement of an application in order to reclaim DIC benefits upon the termination of disqualifying remarriage. The Veterans Court thus erred in thinking that a person in the terminated remarriage situation has no duty to apply, and hence Mrs. Frederick should have no duty to FREDERICK v. DVA 18 apply. As the Veterans Court noted, it is true that the Secretary treats informal requests by individuals to reinstate DIC benefits as sufficient application under statute. Indeed, in this case the Regional Office accepted Mrs. Frederick’s informal November 8, 2007, letter as an application to gain the DIC rights afforded by the Act. The sufficiency of Mrs. Frederick’s “application” has never been challenged by the Secretary—only its timeliness. VIII For the reasons stated above, subsection (e) must be interpreted to apply to any individual seeking to secure the specific DIC benefits newly afforded thereby, and any such individual is required to have applied for such benefits after the date of enactment of the Act and before the end of the one-year period thereafter. Mrs. Frederick’s view of the statute cannot prevail. At the least, the factors we have cited cast doubt on Mrs. Frederick’s view of subsection (e) and would therefore create ambiguity as to which party has the better interpretative argument. Mrs. Frederick understandably does not wish to be drawn into ambiguity, for there she must confront the legislative history she recognizes is adverse and upon which the Secretary could rely. See Staub v. Office of Pers. Mgmt., 927 F.2d 571, 573 (Fed. Cir. 1991) (“Since both parties claim victory on the face of the statute, we have no reluctance to examine the legislative history [of the statute].”) We need not pursue the ambiguity point further, for our interpretation of the statute leaves no ambiguity as to what Congress meant by subsection (e). In the end, with no sustainable statutory interpretation to assert, and no desire to find ambiguity in the statute, the only way Mrs. Frederick could prevail is on the ground found by the Veterans Court: that she is FREDERICK v. DVA 19 simply not covered by subsection (e). But that door, too, is closed to Mrs. Frederick. For the reasons stated above, we must reverse the decision of the Veterans Court, and remand with instructions to dismiss Mrs. Frederick’s claim as untimely filed. REVERSED AND REMANDED COSTS Each party shall bear its own costs. United States Court of Appeals for the Federal Circuit __________________________ RUTH HILL FREDERICK, Claimant-Appellee, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellant. __________________________ 2011-7146 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in case No. 09-433. __________________________ REYNA, Circuit Judge, dissenting I do not believe that the United States Court of Appeals for Veterans Claims (“Veterans Court”) misinterpreted § 101(e) of the Veterans Benefits Act of 2003 (“Act”) by restoring dependency and indemnity compensation (“DIC”) benefits to surviving spouses of veterans who remarry after age 57 and whose application was submitted before December 16, 2004. The Veterans Court, specialists in this area of law, properly held that Mrs. Frederick met all of the statutory criteria and awarded her DIC benefits as the remarried widow of a World War II veteran. The majority decision strips that award from Mrs. Frederick and thousands of others. I respectfully dissent because the plain meaning of the statute requires FREDERICK v. DVA 2 an interpretation favoring Mrs. Frederick; even if ambiguity can be shown, canons of construction unique to veterans law require that we resolve any remaining doubt in her favor. The relevant facts are uncontested and underscore the merit of Mrs. Frederick’s claim under the Act. Mrs. Frederick was married in 1961 to Mr. Fred T. Hill, a World War II veteran who passed away with a 100% disability rating in 1970 and she was at that time a “surviving spouse” under the Act. See § 101(a). Mrs. Frederick submitted an application for DIC benefits to the Veterans Administration on June 4, 1970, shortly after the death of her husband. She received DIC benefits from the time of her husband’s death in 1970 until 1986, when the benefits were terminated due to her marriage to Mr. Spencer Frederick. There is no question that “but for having remarried [she] would [have remained] eligible for benefits” under the Act. See § 101(e). Mrs. Frederick was born on January 4, 1929, and married Mr. Frederick in December of 1986 so at the time of her remarriage, she “had attained age 57” as required by the Act. See id. Given her 1970 application for DIC benefits, her DIC claim was received by the Secretary of Veterans Affairs “not later than the end of the one-year period beginning on the date of the enactment of th[e] Act,” to wit, before December 16, 2004. See id. Accordingly, Mrs. Frederick meets every eligibility requirement on the face of the Act, §§ 101(a)1 and (e),2 and should have been receiving DIC benefits. 1 “(a) The remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of benefits specified in paragraph (5) to such person as the surviving spouse of the veteran.” FREDERICK v. DVA 3 As the Veterans Court determined, the plain meaning of the statute provides only an end date—“not later than the end of the one-year period beginning on the date of enactment of this Act”—by which an application for DIC benefits must have been submitted. Frederick v. Shinseki, 24 Vet. App. 335, 338 (2011); § 101(e). I agree that the Act’s clear language creates a final deadline, as opposed to a bounded period, for submission of a DIC benefits application. Mrs. Frederick’s initial 1970 application for DIC benefits precedes the Act’s critical date by more than three decades. It was more than timely filed. The majority holds that a second application for DIC benefits should have been filed by Mrs. Frederick during a narrow one-year window, between December 16, 2003 and December 16, 2004; that is, Congress created a bounded period of one year during which applications under the Act should have been filed. Yet, the Act neither prescribes filing “during,” “within,” or “between” two dates, nor requires “a reapplication,” “a new application,” or “another application.” In clear and plain language, the Act provides only that “an application” must be submitted “not later than” December 16, 2004. The Veterans Court was correct that this clear language should control. The majority works hard to establish that because the word “submits” is drafted in the present tense, it indicates 2 “(e) APPLICATION FOR BENEFITS.— In the case of an individual who but for having remarried would be eligible for benefits under title 38, United States Code, by reason of the amendment made by subsection (a), and whose remarriage was before the date of enactment of this Act and after the individual had attained age 57, the individual shall be eligible for such benefits by reason of such amendment only if the individual submits an application for such benefits to the Secretary of Veterans affairs not later than the end of the one-year period beginning on the date of enactment of this Act.” FREDERICK v. DVA 4 a fully prospective requirement, i.e., the filing of a new application for DIC benefits. See Maj. Op. at 12-13. (“Submits . . . necessarily is forward-looking from the date of enactment of the Act.”). But the Supreme Court has recognized that while not the typical understanding in other circumstances, a word drafted in the present tense may also be used to encompass past events in “instances in which ‘context’ supports this sort of omnitemporality.” Carr v. United States, 130 S. Ct. 2229, 2236 n.5 (2010). Indeed, English-language scholars know well that the present tense may refer to the past, a usage grammarians call the “historical present.” See R. Pence and D. Emery, A Grammar of Present-Day English, 262-63 (2d ed. 1963). The historical present uses the present tense commonly in narratives to express immediacy. Id. Furthermore, the present tense may be used when time is meant to remain indefinite.3 Id. In this light, I believe that Congress used the present tense word “submits” precisely because it did not wish to limit § 101(e)’s reach to either past or future applications. See Coal. for Clean Air v. U.S. Envtl. Prot. Agency, 971 F.2d 219, 224-25 (9th Cir. 1992) (“The present tense is commonly used to refer to past, present, and future all at the same time.”); In re Stratford of Tex., Inc., 3 The majority acknowledges that Congressional drafting manuals prefer the present tense. Maj. Op. at 12. For example, Congress drafted 42 U.S.C. § 7413(c)(2) using the present tense: “any person who knowingly—(A) makes any false material statement, . . . (B) fails to notify or report as required under this Act; . . .” 42 U.S.C. § 7413(c)(2) (emphasis added). The Ninth Circuit observed that in this instance “Congress uses the present tense to establish criminal liability . . . . Yet clearly the 1990 Amendments do not forgive criminal violations that occurred prior to the Amendments just because Congress speaks in the present tense.” Coal. for Clean Air v. U.S. Envtl. Prot. Agency, 971 F.2d 219, 225 (9th Cir. 1992). FREDERICK v. DVA 5 635 F.2d 365, 369 (5th Cir. 1981) (“[T]he present tense of a verb may sometimes refer to the past and to the future as well as to the present.”). Such “omnitemporality” makes sense in this context, signaling a congressional intent to recognize that eligibility may be retained by anyone who filed prior to the date of enactment, or within a year thereafter. When “submits an application” is added to the express deadline language “not later than,” the meaning is irrefutably clear—only one application for DIC benefits is required, filed any time before December 16, 2004. We must assume when the words of a statute are irrefutably clear that Congress said what it meant and meant what it said, thereby ending our judicial inquiry. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992); United States v. LaBonte, 520 U.S. 751, 757 (1997). The legislative history, no matter how creatively spun, cannot trump the plain and unambiguous language of the statute. See Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994) (“There are, we recognize, contrary indications in the statute’s legislative history. But we do not resort to legislative history to cloud a statutory text that is clear.”); Van Wersch v. Dep’t of Health & Human Servs., 197 F.3d 1144, 1152 (Fed. Cir. 1999) (“[W]e are not prepared to allow the extant legislative history . . . to trump the irrefutably plain language that emerged when Congress actually took pen to paper.”). The Veterans Court found, and I agree, that the legislative history here is, “at best, ambiguous.” Frederick, 24 Vet. App. at 342. The majority cites a single legislative history quotation that remarried spouses “would have one year to apply for the reinstatement of these benefits,” 149 Cong. Rec. S15,133-01 (daily ed. Nov. 19, 2003). Aside that this language also does not create a defined one year period for filing of applications, this limitation was not FREDERICK v. DVA 6 included in the Act as passed. Maj. Op. at 4-5. This inchoate idea—a bounded window for reinstatement—was rejected by Congress, as evidenced that the Act was passed containing language that goes the other way. This case is a good example of why we should avoid reliance on “murky, ambiguous, and contradictory” legislative history, especially when it defies the statute’s plain meaning and defeats its remedial purpose. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005); see also Ratzlaf, 510 U.S. at 147-48; Van Wersch, 197 F.3d at 1152. Even if the statute did admit of ambiguity, we must be loathe to construe § 101(e) against Mrs. Frederick. The Act is a remedial statute intended to broaden eligibility for DIC benefits. The veterans benefits system operates in a uniquely pro-claimant manner so we must do justice, ensuring that veterans and their families are treated fairly. See Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006); Hodge v. West, 155 F.3d 1356, 1362-64 (Fed. Cir. 1998). Indeed, the Supreme Court has held that any interpretive doubt be resolved in the veteran’s favor. Brown v. Gardner, 513 U.S. 115, 117-18 (1994); Coffy v. Republic Steel Corp., 447 U.S. 191, 196 (1980); Fishgold v. Sullivan Dryrock & Repair Corp., 328 U.S. 275, 285 (1946); see also Sursely v. Peake, 551 F.3d 1351, 1355 (Fed. Cir. 2009). The Veterans Court faithfully applied this important principle, and I would affirm.