More Ammo for the 1994 EED via §3.156(b) and VAOPGC 9-97

After-the-fact justification of a past error cannot make right that which was already wrong. Bentley v. Derwinski (1990)

Under 38 C.F.R. § 4.114, Diagnostic Code 7345 (2001), a 10 percent evaluation is warranted for hepatitis C manifested by liver damage with mild gastrointestinal disturbance. A 30 percent evaluation is warranted for hepatitis C manifested by minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures. A 60 percent evaluation is warranted for hepatitis C with moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression. A 100 percent evaluation is warranted for hepatitis C with marked liver damage manifested by liver function test and marked gastrointestinal symptoms, or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy.

Smith v. Nicholson, 451 F.3d1344, 1349 (Fed. Cir. 2006). The Secretary may not attempt to subvert the plain language of the regulation simply by adopting a litigating position contrary to it. See Auer v. Robbins, 519 U.S. 452,462 (1997) (holding that agency positions adopted in response to litigation, or those adopted as a'post hoc rationalization' advanced by an agency seeking to defend past agency action against attack" are not entitled to deference from the Court (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988))); Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 ("'[L]itigating positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."). [from Ervin v. Shinseki 2011]

Case exactly like mine. Denial followed by NOD. SOC continuing denial. Filing of new and material evidence. Compelled new decision per 3.156(b). This appeal shows denial after the new evidence. My file does not. Evidence submitted well within the appeal period.

http://www4.va.gov/vetapp95/files5/9520118.txt

1. Procedural Posture of the Rating Decisions. The appellant has referred to and argued error in the October 1984 and January 1985 rating decisions without precise distinction between them. The appellant has alleged significant administrative error to his prejudice in each. Myler, 1 Vet.App. 571. As set out below, both decisions became final. Neither has been subsumed in a subsequent Board decision, 38 C.F.R. § 20.1104 (1994), and both are susceptible to challenge for CUE. After receiving the November 2, 1984, notice of the October 1984 denial and of his appellate rights, the appellant filed a timely notice of disagreement and the RO issued a SOC January 3, 1985. However, the appellant did not thereafter perfect his appeal by filing a substantive appeal within the remainder of the one year following the November 2, 1984, notice of disallowance. 38 C.F.R. § 20.302(b) (1994). The October 1984 decision became final when the appeal period lapsed November 2, 1985. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1994). The RO received additional, new and material, evidence (service personnel records) on January 8, 1985, within the appeal period. Under the pertinent regulation, that evidence compelled reconsideration of the October 1984 decision. 38 C.F.R. § 3.156(b) (1984). The rating decision of January 1985 confirmed and continued the denial of service connection upon consideration of evidence that was filed "in connection with the claim which was pending at the beginning of the appeal period," 38 C.F.R. § 3.156(a) (1984), i.e., the claim for service connection for PTSD received on March 6, 1984. The RO notified the appellant of the January 1985 rating decision in a letter of May 6, 1985. The service personnel records related to the claim adjudicated in the October 1984 rating decision from which the appeal arose. The additional evidence received after the adverse October 1984 determination did not extend the time to appeal from that decision. 38 C.F.R. § 19.130(b) (1984). Consequently, the January 1985 rating decision did not result in another year within which to perfect an appeal. It became final when the appeal period for the October 1984 rating decision ran out on November 2, 1985.

The denial in October 1984 was materially influenced by the determination by VA medical personnel, prior to November 1984, that the appellant lacked veracity in his allegations concerning precipitating stressors; the rating was made without the benefit of the service personnel records. Once the service personnel records were obtained confirming at least the claims of combat duty, the RO should have ordered another examination by examiners who had seen the record supporting the appellant's veracity. The attainment of informed diagnoses through careful consideration of historical reports and medical documentation is fundamental to VA adjudicative procedures. 38 C.F.R. §§ 3.102, 4.1, 4.2 (1984). Obviously, the service personnel records were "procurable," 38 C.F.R. § 3.102 (1984), when the appellant filed his claim in March 1984, and it was a failure of "the obligation of the Veterans Administration to assist a claimant in developing the facts pertinent to his claim," 38 C.F.R. § 3.103(a) (1984), to execute a rating action without having obtained those records. Even though the failure to obtain the personnel records constituted a breach of the duty to assist, which was in full force and effect in October 1984, 38 C.F.R. § 3.303(a) (1984), such a breach resulted in a rating decision made with an incomplete record, not an incorrect record. Caffrey v. Brown, 6 Vet.App. 377, 383-84 (1994). For that reason, "VA's breach of the duty to assist cannot form a basis for a claim of CUE." Id.

The failure to obtain VA hospital records the existence of which were known to the RO, and which contained a diagnosis of PTSD, was clear and unmistakable error in January 1985. The most significant aspect of the failure to obtain the November 1984 treatment records from VAMC Portland was that the appellant was prejudiced in his ability to obtain review of supportive medical evidence in light of corroborative personnel records. Had the RO obtained the hospital summaries of November and December 1984, the RO would have had confirmation both of stressors and of diagnosis of PTSD at the time of the January 1985 rating decision. Ironically, the personnel records were held immaterial in January 1985 for lack of a confirmed diagnosis of PTSD. Those records were material on their face under the applicable regulation, 38 C.F.R. § 3.156 (1984), and the ruling to the contrary was a clear and unmistakable error in the application of that regulation. Incidentally, those records are of such materiality that their receipt would have compelled reconsideration of the prior denial had they been received even after the rating decisions became final. See 38 C.F.R. § 3.156(b) (1984).

It was the juxtaposition of the VAMC Portland diagnosis of PTSD with the service personnel records confirming the fact of a stressor that persuaded the hearing officer to grant service connection for PTSD in his decision of April 1990. However, VA had constructive notice of those hospital records and the VA diagnosis of PTSD at the time the RO held the service personnel records were immaterial for lack of a diagnosis of PTSD. Bell v. Derwinski, 2 Vet.App. 611 (1992). The crucial hospital records were not only in the control of VA before the January 1985 rating decision, but the RO had actual notice of them through the VA Form 10-7131 received in November 1984. Thus, the January 1985 rating decision cannot be seen as reaching a correct decision on an incomplete record, but must be seen as reaching an undebatably incorrect decision based on facts the RO cannot complain it did not know. See Murincsak v. Derwinski, 2 Vet.App. 363, 372-73; see also Caffrey at 384 (Kramer, J. concurring).

Unfortunately Murincsak was decided April 24th, 1992 a few days after me. No good for 89 CUE but great for 1994 EED (I refer to the VAMC records of AO test 9/23/1993 right before I filed. VA had them (constructive possession).

See Murincsak v. Derwinski, 2 Vet.App. 363, 372-73;

http://search.uscourts.cavc.gov/isysquery/5894255d-561c-42ad-b629-0c983688637c/3/doc/

The Board has reviewed the case law and does not find support for the veteran’s position. In general, it appears well settled that erroneous advice of a government employee cannot estop the government from denying benefits. See, for example, Bone v. Brown, 9 Vet. App. 446 (1996); Walker v. Brown, 8 Vet. App. 356 (1995). And this rule has been applied in the presence of an error in notice of a rating. Lozano v. Derwinski, 1 Vet. App. 184, 186 (1991). However, equitable tolling may be an available remedy if the appellant can show he was misled by appellee and that appellant reasonably relied on the misrepresentation by neglecting to file a timely appeal.

Section 3.156(b) is intended to be a veteran-friendly provision that allows for the assignmentof an effective date of the date of the original claim when certain requirements are met. 72 Fed. Reg.28,778 (May22, 2007) (explaining that §§ 3.156(b) and 3.400 "provide a claimant-friendly effective

date rule for awards based on evidence received while a claim is on appeal or before the appealperiod expires"). To accept the Secretary's position that the Board correctly determined that theSeptember 1996 RO decision was final would be to allow VA to ignore this claimant-friendlyprovision. It would also create the possibility that VA, by not considering evidence submitted duringthe one-year appeal period following the RO decision and simply waiting for the RO decision tobecome final, deprived the appellant of the earlier effective date associated with his December 1995claim. This would be antithetical to the nonadversarial, claimant-friendly nature of VA proceedings.See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (noting "VA's uniquely pro-claimantbenefits system"); Young v. Shinseki (2009)

Muehl v. West, 13 Vet.App. 159, 161 (1999) (holding that records constituting new andmaterial evidence received within one year after RO decision rendered RO decision nonfinal);38 C.F.R. § 3.400(q) (2009) (providing that, as to new and material evidence received within appealperiod, "effective date will be as though the former decision had not been rendered").

And:Thus, if suchnew and material evidence had been submitted and had not been acted upon, Mr. King’s claim couldstill be pending until a decision had been made on that evidence. See 38 C.F.R. § 3.160(c) (2009)("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated");see also Ingram v. Nicholson, 21 Vet.App. 232, 240 (2007) ("[A] claim remains pending–even for years–if the Secretary fails to act on a claim before him.")

King v. Shinseki (2010)

From King, it can be deduced that any new evidence submitted during an appeal, sans an inspection of same, operates to suspend the adjudication until it can be determined to be admissible under 3.156(a). There is no requirement at the time that it be material. Mere failure to obey 19.31 and 19.37(a)[ 38 USC 7105(d)] and issue an SSOC makes it an incomplete adjudication or a “pending claim “as envisioned in 3.160(c). When it is finally examined de novo, an

appropriate disposition can ensue determining the material value and whether it relates to an unestablished fact necessary to substantiate the claim. I should have been a fucking lawyer.-----------------------------------------------------------------------------------------------------

Equitable estoppel prevents one party from taking a different position at trial than they did at an earlier time if the other party would be harmed by the change. Generally, the elements that need to be proved are: 

1. There must be a representation or concealment of material facts. 2. These facts must be known at the time of the representation to the party being

estopped. 3. The party claiming the benefit of the estoppel must not know the truth concerning

these facts at the time of the representation. 4. The representation must be made with the intention or the expectation that it will be

acted upon. 5. The representation must be relied upon and acted upon. 6. The party acting upon the representation must do so to his or her detriment. 

Estoppel by laches precludes a party from bringing an action when the party knowingly failed to claim or enforce a legal right at the proper time. This doctrine is closely related to the concept of STATUTES OF LIMITATIONS, except that statutes of limitations set specific time limits for legal actions, whereas under Laches, generally there is no prescribed time that courts consider "proper." A defendant seeking the protection of laches must demonstrate that the plaintiff's inaction, Misrepresentation, or silence prejudiced the defendant or induced the defendant to change positions for the worse.

Equitable Tolling

Definition - Noun: a doctrine or principle of tort law: a statute of limitations will not bar a claim if despite use of due diligence the plaintiff did not or could not discover the injury until after the expiration of the limitations period 

However, if a claimant has not yet perfected an appeal and VA issues a supplemental statement of the case in response to evidence received within the one-year period following the mailing date of notification of the determination being appealed, 38 U.S.C. § 7105(d)(3) and 38 C.F.R. § 20.302(c) require VA to afford the claimant at least 60 days from the mailing date of the supplemental statement of the case to respond and perfect an appeal, even if the 60-day period would extend beyond the expiration of the one-year period. See VAOPGCPREC 9-97 (February 11, 1997).

http://www4.va.gov/vetapp99/files2/9913379.txt

§ 20.800   Rule 800. Submission of additional evidence after initiation of appeal.

Subject to the limitations set forth in Rule 1304 (§20.1304 of this part), an appellant may submit additional evidence, or information as to the availability of additional evidence, after initiating an appeal. The provisions of this section do not apply in proceedings before the General Counsel conducted under part 14 of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness.

(Authority: 38 U.S.C. 7105(d)(1); 38 U.S.C. 5902, 5903, 5904)

[57 FR 4109, Feb. 3, 1992, as amended at 73 FR 29879, May 22, 2008]

Site address for VAOPGCPREC 9-97--- http://www4.va.gov/ogc/opinions/1997precedentopinions.asp

Here 9-97 is in 1998…

http://www4.va.gov/vetapp98/files3/9826124.txt

This case comes to the Board of Veterans' Appeal (Board) on appeal from rating decisions of the Atlanta, Georgia, Department of Veterans (VA), Regional Office (RO), which denied entitlement to a disability rating in excess of 30 percent for PTSD. The veteran filed a timely notice of disagreement, and was issued a statement of the case in August 1996. Following the receipt of additional evidence, the RO confirmed and continued the denial of the benefit sought by rating decisions issued in October and November 1996; a supplemental statement of the case (SSOC) was not issued on either occasion. In view of the foregoing, the veteran is considered to have timely perfected his appeal in December 1996. See 38 C.F.R. §§ 19.31, 20.302, 20.304 and VAOPGCPREC 9-97 (1997) (if a claimant has not yet perfected an appeal and VA is required to issue a SSOC in response to evidence received within the one-year period following the mailing date of notification of the determination being appealed, the applicable regulations require VA to afford the claimant at least 60 days from the eventual mailing date of the SSOC to respond and perfect an appeal, even if the 60-day period would extend beyond the expiration of the one-year period. To the extent that 38 C.F.R. § 20.304 purports to

provide otherwise, it is invalid and requires amendment).

Significantly, it is also noted that the veteran initially requested a hearing before a Member of the Board at the local RO (Travel Board). Instead, the veteran and his spouse presented testimony at a hearing before the local Hearing Officer (HO) in April 1997. During the course of the hearing, the veteran withdrew his request for a Travel Board hearing. The HO subsequently granted an increased rating to 50 percent by decision and SSOC issued in July 1997. Parenthetically, it is noted that the HO's decision and SSOC informed the veteran of the various amendments that became effective on November 7, 1996, as to sections of the VA Schedule for Rating Disabilities pertaining to Mental Disorders.

Not once but twice in 98, this one with a go back in time date:

http://www4.va.gov/vetapp99/files3/9927507.txt

Board notes that in the May 1998 supplemental statement of the case, the RO cited an opinion of the VA General Counsel, VAOPGCPREC 9-97, in support of its conclusion that the period for filing a substantive appeal had not expired. In this opinion, it was essentially held that if a claimant has not yet perfected an appeal and VA issues a supplemental statement of the case in response to evidence received within the one-year period following the mailing date of notification of the determination being appealed, the appellant is entitled to 60 days from the mailing date of the supplemental statement of the case to respond and perfect an appeal, even if the 60-day period would extend beyond the expiration of the one-year period. It was further held that if VA receives additional material evidence within the time permitted to perfect an appeal, VA is required to issue a supplemental statement of the case even if the one-year period following the mailing date of the notification of the determination being appealed will expire before VA can issue the supplemental statement of the case.

http://www4.va.gov/vetapp99/files3/9923709.txt

This one is perfect as it encompasses the exact time as mine (1994-95).

However, if a claimant has not yet perfected an appeal and VA issues a supplemental statement of the case in response to evidence received within the one-year period following the

mailing date of notification of the determination being appealed, 38 U.S.C. § 7105(d)(3) and 38 C.F.R. § 20.302(c) require VA to afford the claimant at least 60 days from the mailing date of the supplemental statement of the case to respond and perfect an appeal, even if the 60-day period would extend beyond the expiration of the one-year period. In addition, if VA receives additional material evidence within the time permitted to perfect an appeal, 38 U.S.C. § 7105(d)(3) requires VA to issue a supplemental statement of the case even if the one-year period following the mailing date of notification of the determination being appealed will expire before VA can issue the supplemental statement of the case. See VAOPGCPREC 9-97 (February 11, 1997).

When I reported for my tinnitus exam on Feb. 8, 1995 I created more evidence within the one year appeal period in addition to the evidence I submitted with my NOD. The additional evidence submitted with the NOD alone provoked the necessity of issuing an SSOC , but the new exam for tinnitus created yet more evidence within the one year period from the adverse decision date. That alone, standing by itself required this SSOC. It is fairly evident that the new decision answered by an SSOC never occurred. VAOPGCPREC 9-97 covers this eventuality in every respect. All 3 claims could have been addressed on SSOC but oddly none were.Alternatively, service connection may be established under § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Brewer v. West, 11 Vet. App. 228, 231 (1998).

More ammo:

http://www4.va.gov/vetapp99/files3/9926971.txt

The present appeal arises from an April 1994 rating decision, in which the RO denied the veteran's claims for a cardiovascular disorder, respiratory disorder, sleep disorder, numbness of the toes, and hearing loss, all claimed as secondary to Agent Orange exposure. The veteran filed an NOD in August 1994, and an SOC was issued by the RO in January 1995. With respect to his substantive appeal, we are cognizant that the veteran did not file a VA Form 9 (Appeal to Board of Veterans' Appeals), or any other equivalent document. However, in March 1995, he did submit additional evidence for consideration. A supplemental statement of the case (SSOC), with respect to that evidence as well as testimony offered by the veteran during a personal hearing in May 1995, was not issued by the RO until April 1996.

We note that, under an opinion of the VA General Counsel,

VAOPGCPREC 9-97 (Feb. 11, 1997), if VA received additional material evidence within the time permitted to perfect an appeal, 38 U.S.C. § 7105(d)(3) requires VA to issue an SSOC, even if the one-year period following the mailing date of notification of the determination being appealed will expire before VA can issue an SSOC. Furthermore, the veteran is allowed 60 days following the issuance of the SSOC to perfect an appeal if a substantive appeal has not yet been filed in response to the SOC, even if that 60-day period would extend beyond the one-year appeal period (or any authorized extension of that period).

In this instance, since the veteran gave testimony at his personal hearing regarding his claims on appeal, we liberally interpret the hearing (in the form of a typewritten hearing transcript) as his substantive appeal. Therefore, since the hearing testimony given in May 1995 preceded the issuance of the April 1996 SSOC and 60-day extension period following submission of evidence during the appeal period, we hold that the veteran has filed the equivalent of a timely substantive appeal. Furthermore, we also note that the RO issued an additional SSOC in July 1998.

Finally, the Board notes that, in an April 1996 rating decision, the RO denied the veteran's claim of service connection for tinnitus, and also denied his increased rating claim for a left knee disorder. The veteran filed an NOD in June 1996, and no further action has been taken by the RO with respect to that appeal. These additional issues are discussed in the Remand section of this decision

. As noted previously, the RO, by a decision entered in April 1996, denied the veteran's claim of service connection for tinnitus, and denied his increased rating claim for a left knee disorder. Subsequently, in June 1996, the veteran submitted an NOD with respect to those determinations. See Introduction, supra. It does not appear from the record, however, that a statement of the case (SOC) addressing those claims has been furnished to the veteran. In situations such as this, the Court has held that the Board should remand, rather than refer, the matter to the RO for the issuance of an SOC. See, e.g., Manlincon v. West, 12 Vet.App. 238, 240-41 (1999).

On remand, the RO should reexamine these two claims to determine whether additional development or review is warranted. If no preliminary action is required, or when it is completed, the RO should prepare an SOC in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought on appeal, or the NOD is withdrawn. See 38 C.F.R. § 19.26 (1998). If, and only if, a timely substantive appeal is received, then these two claims should thereafter be certified to the Board for appellate review. See 38 U.S.C.A. § 7105(d) (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (1998).

This one is for my hep/PCT EED---------------

Equitable estoppel  may be used to prevent the running of a time limit where the defendant's conduct has caused plaintiff to delay, in reasonable reliance on that conduct, in bringing his action. See Vadino v. A. Valey Eng'rs, 903 F.2d 253, 263 (3d Cir. 1990). From Elsevier v. Derwinski (1991)

Nevertheless, under 38 U.S.C. 503(a), the Secretary may provide equitable relief "including the payment of moneys" where VA benefits "have not been provided by reason of administrative error on the part of the Federal Government or any of its employees", see 38 C.F.R.2.7 (1998) (setting forth application process), such as a VA failure to provide an examination when a veteran submits a well-grounded claim, 38 U.S.C. 5107(a); see Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998) (mem.); R. at 95- 96 (April 1991 sworn testimony from veteran's psychiatric registered nurse wife that veteran's symptoms of agoraphobia had developed during service)

My claim of equitable estoppel is directed against the Jan. 1995 SOC promising a new decision on the new evidence and the tolling of the Appeal period in the absence of an SSOC or decision. I make no claim for monetary benefits which is precluded by law. VAOPGCPREC 9-97 makes the issuance of the SSOC mandatory following the filing of new evidence.

The Federal Circuit also explained that the "equitable tolling of a statute of limitations is generally found to occur only when a claimant files a defective pleading during the statutory period or is induced or tricked by his adversary's misconduct into allowing a filing deadline to pass." Centre v. Barram, _ F.3d_, No. 99-1235 (Fed. Cir. 1999)

For equitable tolling to apply, Mr. Tippitt "must have relied to his or her detriment on something that VA did that breached a duty to [him] or, perhaps, some action VA had a duty not to do." See Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998); Santoro v. West, 13 Vet.App. 516, 520-21 (2000).

B.  Equitable Estoppel

Under the doctrine of  equitable estoppel , "he who by his language or conduct leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted." Dickerson v. Colgrove, 100 U.S. 578, 

580 (1880). "An essential element of any estoppel is detrimental reliance on the adverse party's misrepresentations." Lyng v. Payne, 476 U.S. 926, 932 (1986). Courts have shown reluctance in applying the doctrine of equitable estoppel  against the government. See OPM v. Richmond, 496 U.S. 

414 (1990). 

I am not claiming estoppel for a monetary claim here. I am claiming estoppel due to the VA promising me a new decision based on the new and material evidence submitted with my NOD. By promising a decision, then not making said decision, I waited past the one year statute of limitations for my claim. VAOPGCPREC 9-97 says VA cannot do that or, if they do, then it still awaits an SSOC and my Substantive Appeal is presumed to have been filed.

Ah, yes. And yet another BVA decision requiring a remand to the AOJ for failure to issue an SOC or SSOC…

http://www4.va.gov/vetapp99/files3/9923350.txt

As to the veteran's hypertension claim, it is noted that the RO denied entitlement to service connection for that disorder in an April 1999 rating decision. Although the veteran filed an NOD in May 1999, which was received prior to this case being certified and transferred to the Board, he was not issued an SOC or SSOC as to this issue. Accordingly, the claim is the subject of the 'REMAND' appended to this decision.

As noted above, the veteran has filed a timely NOD as to the denial of his claim for service connection for hypertension in an April 1999 rating decision of the Jackson VARO. However, he was never issued an SOC or SSOC as to this claim. Clearly additional procedural development is necessary. See Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995) (where there has been an initial RO adjudication and an NOD has been filed [in this case, as to the compensation level assigned], thereby initiating the appellate process, the claimant is entitled to an SOC, and the RO's failure to issue the same is a procedural development requiring remand).

Okay. Back to 1982 for precedence. Denial followed by SOC. New evidence submitted following SOC. No SSOC forthcoming. The appeal is tolled and the decision was not final.

http://www4.va.gov/vetapp07/files2/0715392.txt

It ain’t over until the fat lady issues the SSOC:

FINDINGS OF FACT

1. The veteran's original claim for service connection for PTSD was received on May 10, 1982.

2. In a rating decision dated July 1982 and issued in August 1982, the RO denied service connection for PTSD.

3. In March 1983, the veteran submitted a timely notice of disagreement (NOD).

4. In April 1983, the RO issued a statement of the case (SOC).

5. Subsequent to the issuance of the April 1983 SOC, additional pertinent evidence was received in April 1983.

6. The RO did not issue a supplemental statement of the case (SSOC) after the receipt of the April 1983 evidence.

7. The 60 days allowed for submitting a substantive appeal following the issuance of a SSOC is tolled, the July 1982 rating decision is not final, and the May 10, 1982 claim remained open at the time that service connection for PTSD was established in an October 1987 rating decision.

Green light. Let’s revisit 1994…

the application of equitable tolling, within the meaning of Baileyv. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc)

In Bailey, the Federal Circuit characterized Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990), as having held that "equitable tolling is available in suits between private litigants . . .'where the complainant has been induced or tricked by his adversary's misconduct into allowing thefiling deadline to pass.'" Bailey, 160 F.3d at 1364 (quoting Irwin, supra). The Federal Circuit held in Bailey that equitable tolling in the paternalistic veterans' benefits context does not require misconduct (such as trickery, id. at 1365); however, Bailey does require the appellant to have beenmisled or induced by VA conduct "into allowing the filing deadline to pass". Id. at 1364 (quoting Irwin, supra); see also Leonard v. West, 12 Vet.App. 554, 557 (1999)

There must be cause and effect; that is, the appellant must have relied to his detriment on something that VA did (or should have but did not do). See Bailey, 160 F.3d at 1365 (noting that veteran had accepted and relied on VA advice and was misled by that advice "into allowing filing deadline to pass").

http://www.uscourts.cavc.gov/documents/Chastain_97-1161.pdf

"The starting point in interpreting a statute is its language". Good Samaritan Hospitalv. Shalala, 508 U.S. 402, 409 (1993). The "plain meaning [of a statute] must be given effect unlessa 'literal application of [the] statute [or regulation] will produce a result demonstrably at odds withthe intention of its drafters.'" Gardner v. Derwinski, 1 Vet.App. 584, 586-87 (1991), aff'd sub nom.Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994); Fagan, 13 Vet.App.at 52; Curtis, 11 Vet.App. at 133. "If the intent of Congress is clear, that is the end of the matter".Skinner v. Brown, 27 F.3d 1571, 1572 (Fed. Cir. 1994) (quoting Chevron, U.S.A., Inc. v. NaturalResources Defense Council, Inc., 467 U.S. 837, 842 (1984)), aff'ing 4 Vet.App. 141 (1993) (mem.).

Here, a plain reading of 38 U.S.C. § 7105 shows a statutory scheme whereby a document thatsatisfies the five specified elements is an NOD and thereby initiates appellate review. The NODtriggers a series of sequential steps that may lead to an appeal to the Board. The first step of theensuing process initiated by an NOD under section 7105(d)(1) is the "development or review action"taken by the RO to try to resolve the disagreement. Specifically, VA regulations require that, afteran NOD is timely filed, the RO "must reexamine the claim and determine if additional review ordevelopment is warranted". 38 C.F.R. § 19.26 (1999). Thereafter, and only "[i]f such action doesnot resolve the disagreement either by granting the benefit sought or through withdrawal of the"NOD, the RO issues an SOC (or a Supplemental SOC (SSOC)). 38 U.S.C. § 7105(d)(1); see

38 C.F.R. § 19.26

The clarity and completeness of the statute has been determined by our opinion in Tomlin v. Brown, 5 Vet.App. 355 (1993).

The difficulty with § 20.201 is that it may be read as implying that a VA claimant must intendto appeal to the Board at the time that he or she files an NOD. Indeed, this is how our dissentingcolleague seems to interpret the regulation. Infra at __, slip op. at 15. Any such construction makesno sense under the statutory scheme, however. All that an NOD-filing claimant need desire is reviewand development by the RO followed by its issuance of an SOC (or SSOC) if the claimant's disagreement is not resolved by the RO. This is the process required by section 7105(d)(1).Ultimately, if the claimant is still dissatisfied after receiving the SOC (or SSOC), he or she then maypursue an appeal to the BVA by filing a Substantive Appeal, and only then does the case go forwardto the Board for its review. In other words, after an NOD is filed, it is quite possible that it may notbecome necessary to transmit the case to the BVA.

From Gallegos v. Gober (2000)

The Secretary is, of course, free to amend his regulations to accord with his desiredinterpretation, in accordance with proper notice and comment procedures, see 5 U.S.C. § 553, andto the extent the amended regulations do not conflict with the statutory mandate of section 5103A,but he has not done so. He may not attempt to subvert the plain language of his regulation simplyby taking a litigating position that the regulation means something other than what it says. See Auerv. Robbins, 519 U.S. 452, 462 (1997) (holding that agency positions adopted in response to litigation,or those adopted as a "'post hoc rationalization' advanced by an agency seeking to defend past agency

action against attack" are not entitled to deference from the Court (quoting Bowen v. GeorgetownUniv. Hosp., 488 U.S. 204, 212 (1988))); Martin v. Occupational Safety & Health Review Comm'n,499 U.S. 144, 156 (1991) ("'[L]itigating positions' are not entitled to deference when they are merelyappellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in thereviewing court." (citing Bowen, 488 U.S. at 212)).

Savage v. Shinseki (2011)

The Board stated that the failure to recognize the existence of a pending claim is not a final decisionsubject to collateral attack in a request for revision on the basis of CUE, relying on our holding inNorris v. West, 12 Vet.App. 413, 422 (1999) (determining that a claim reasonably raised to the ROwas not adjudicated and holding that unadjudicated matters were not final for purposes of CUEattack). R. at 10-11. Thus, the Board held that the 1944 RO's failure to adjudicate a claim forpsychoneurosis reasonably raised in 1944 cannot be CUE because there is no final decision on thatclaim subject to a CUE attack

We are unable to conclude, therefore, that the Statement of the Case was mailed to appellant and his designated representative in the manner prescribed by 38 U.S.C. § 7105(d)(3) and 38 C.F.R. §19.121(a). Accordingly, the sixty-day period within which to respond did not commence to run on June 6, 1985. Cf., Ashley v.  Derwinski , 2 Vet.App. 62, 67 (1992)

C.Under 38 U.S.C. § 7105(d)(3), a claimant has sixty days to respond to a Statement of the Case or to request additional time to respond. The response time of sixty days commences to run from the date the Statement of the Case is "mailed". See 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 19.129(b)(1991) (superseded by 57 Fed. Reg. 4113 (1992) (to be codified at 38 C.F.R. § 20.302(b))). However, that same statute only permits an agency of original jurisdiction to close a case for failure to respond after "receipt" of the Statement of the Case. See 38 U.S.C. § 7105(d)(3); cf., 38 C.F.R. § 19.124(1991) (superseded by 57 Fed. Reg. 4107 (1992) (to be codified at 38 C.F.R. § 19.32)) (case may be closed if no response;no mention of statutory requirement of "receipt"). There is no statutory 

authority allowing an agency of original jurisdiction to close a case for lack of response to a Statement of the Case unless an appellant, and the appellant's representative if there is one, received the Statement of the Case. 

Kuo v. Derwinski (1992) Obviously a SSOC is included in this as a SSOC is just an updated SOC.