Caseflicks

United States Court of Appeals for Veterans Claims • 1999

Kutscherousky v. West

12 Vet. App. 369 | 1999 U.S. Vet. App. LEXIS 253

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Takeaway

In short, this case guarantees veterans a 90-day post-remand opportunity to submit evidence, argument, or request a hearing after the Board gives notice, reinforcing that a judicial remand returns the claim to a full, nonadversarial VA adjudication.

Background

The Board of Veterans’ Appeals denied the veteran’s claim in an August 31, 1998 decision. After the Secretary confessed error, the Veterans Court initially granted the Secretary’s unopposed motion to vacate the Board decision and remand the matter, issuing its mandate on February 26, 1999.

Shortly afterward, the Secretary asked the Court to recall its mandate, revoke the earlier order, and allow an amended remand motion. The proposed amendment would expressly state that the veteran could submit additional evidence and argument on remand and would clarify that Hodge v. West had not altered the presumption that newly submitted evidence is credible when deciding whether a previously denied claim should be reopened.

Although the veteran did not oppose the motion, the Court convened a panel because the request raised a recurring question: what rights does a claimant have to submit evidence and argument after the Veterans Court remands a case to the Board?

Issues

Issue #1

Whether the Court should recall its recently issued mandate and revoke its prior remand order.

Holding

Yes. The Secretary showed good cause and unusual circumstances sufficient to justify recalling the mandate and reinstating the appeal.

Reasoning

A mandate may be recalled only for good cause, to prevent injustice, and in unusual circumstances sufficient to justify altering a prior judgment. That demanding standard protects the finality of the Court’s judgments.

The standard was met here because the Secretary had confessed error, the requested action would serve the veteran’s interests rather than harm them, the veteran did not oppose it, and the mandate had issued only days earlier. Clarifying an important recurring remand issue also supplied a strong institutional reason to recall the mandate.

Issue #2

Whether Hodge v. West eliminated the presumption that newly submitted evidence is credible when determining whether a claimant has presented new and material evidence to reopen a final claim.

Holding

No. Hodge did not disturb the established presumption of credibility for new evidence at the reopening stage.

Reasoning

The Court’s en banc decisions construing Hodge, Elkins v. West and Winters v. West, did not suggest that Hodge changed the rule stated in Evans v. Brown and Justus v. Principi: new evidence is presumed credible when VA decides whether it is new and material.

Because that rule remained binding precedent, the Court saw no need to add a special statement about it to the remand order. VA and the Board were already required to apply the presumption on remand.

Issue #3

Whether the Court needed to modify the Secretary’s remand motion expressly to give the veteran a right to submit additional evidence and argument after remand to the Board.

Holding

No. Modification was unnecessary because the Court established a generally applicable post-remand right to submit evidence and argument for 90 days after the Board mails post-remand notice.

Reasoning

The Board Chairman’s existing memorandum had treated a claimant’s ability to submit evidence after a Court remand as generally governed by 38 C.F.R. § 20.1304, unless the Court’s particular remand expressly permitted additional evidence. Under that regulation, a claimant ordinarily may submit evidence as of right during a 90-day period after notice that the appeal has been certified to the Board and the record transferred.

The Court held that, after a Court remand, the Board’s mailing of post-remand notice is the functional equivalent of the regulatory notice that triggers § 20.1304’s 90-day period. This interpretation reads VA’s pre-judicial-review regulations in light of the modern system, including judicial remands and the precedent they generate.

Accordingly, in every case remanded from the Court to the Board for adjudication or readjudication, the claimant may, for 90 days after the Board mails post-remand notice, submit additional evidence and argument without showing good cause. The claimant may also request within that period a hearing on appeal at which to submit new evidence, subject to the procedures governing matters not previously considered by the agency of original jurisdiction.

The rule fits the character of veterans-benefits adjudication. A Court remand returns the claim from an adversarial judicial proceeding to VA’s nonadversarial, ex parte process, where the claim should receive a fresh and critical de novo examination. The Board may therefore seek any additional evidence needed to resolve the remanded matter promptly.

If the Board itself remands the case to an agency of original jurisdiction, it must restate the claimant’s right to submit additional evidence and argument on the remanded matters. The Court emphasized that this holding is binding in all cases then in, or later placed in, remand status from the Court unless a remand order specifically provides otherwise.