UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O

. 10-1226

B E TZ A I D A P. J E R

N I G A N , A P P E L L

A N T ,

V

. E R I C K. S H I

N S E K I , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.

On Appea l from the B oard of Veter ans' Appea ls (Arg ued Mar ch 28, 2012 De cided June 19, 2012)

David J. Lowenstein, of Richmond, VA, with whom Todd M. W e s c h e , f o rmerly of Arling ton, VA, was on the brief, was on the pleading for the appellant. Mr. L owenstein arg ued b ef o re the Court.

Mark D. Vichich, of Washington, D.C., wi th whom W ill A. Gunn , Gene ral Counsel; R. Randall Campbell , Assistant Gene ra l C o u nsel; and David L. Quinn , Deputy Assistant Gene ral Counsel, all of W as h i n gt o n , D. C, wer e on the brief, was on the pleading for the appellee

. Mr. Vichich a rg ued bef ore the Court.

Be fore HAGEL , DAVI S, and SCHOEL EN, Judges

. HAGEL , Judge : Be tzaida P. J ernig an appea ls throug h counsel a Marc h 23, 2010, Boa rd of Veter ans' Appea ls (B oard) decision that denied entitlement to an eff ective date ear lier than October 31, 2001, for the awa

rd of VA disability benef

its for g astroesopha g eal ref lux disease, a lumbosacra l strain, and a

n appende ctomy

scar

. Ms. J ernig an' s Notice of A ppeal wa s timely

and the Court has 1 jurisdiction to revie w the Boa rd decision pursuant to 38 U.S.C. § 7252(a)

. This matter was ref err ed
to a panel of the Court to deter mine whether the timing require ment in 38 C.F.R. § 3.155(a) (1995)

T he Bo ard also rem anded claim s for bene fi t s fo r a right shoul der disability , laby rinthi tis w ith vertigo, and 1 tension headaches, as w ell as the issu e of entitlem ent to an earlier eff ective date for the aw ard of a total disability rating based on individual un em plo y ability . Accor dingly , those m atters ar e not b efore the Court a t this tim e. See 38 U.S.C. § 72 66 (stating that the Court review s only fin al decisio ns of the Bo ard ); see also Howard v. Gob er , 22 0 F.3d 13 41 , 13 44 (Fed

. Cir. 20 00 ) (B oar d rem and do es not constitu te a fin al decisio n that m ay be app ealed (citing 38 C.F.R. § 20 .11 00 (b ) (1 99 9) )).within which a veter an must submit a formal application form was a valid exercise of the Secre tary ' s

ru l em ak i n g authority and whether the Secre tary has a duty to notify claimants of that timing require ment. For the rea sons set forth below, the Court will aff irm the Marc h 2010 Boa

rd decision.

I. F ACTS Ms. J ernig an ser

ved on ac tive duty

in the U.S. Navy

from Apr il 1989 to May

1995. I n J uly 1995, Ms. Jernig an submitt ed a VA For m 21- 4138, Statement in Support of Claim, in which she stated that s h e s uffe red from, among other conditions, back, spinal, and stomach disabiliti es. On that form, Ms. J ernig an included her full name, Social Security number, and mailing addre ss. She also enclosed se vera l service medical recor ds in support of her claims that indicated that she ser

ved in the Navy

. I n an Aug ust 1995 letter, VA r esponded. The rele vant par ag raphs of the letter r ead: Please note the para g raph( s) chec ked below: I GNO R E ANY PARAGRAPH NOT CHECKED.

G 1. The evidenc e reque sted below should be submitt ed as soon as possible, pref era bly within 60 day s, and in any case it must be rec eived in the VA within one y ear from the date of this letter; otherwise benef its, if entitlement is established, may not be paid prior to the date of its rec eipt.

} a. The enclose d form(s) should be completed and returne d to this office so that further

action may

be take n on y our cla im.

Record (R.) at 2185. Only para g raph 1a was chec ked. The letter indicated t h at "1 -5 2 6 " was enclose d; Form 1-526 ( now For m 21-526) wa s VA' s formal a pplication form. 2 After more than six y ear s of si lence , in October 2001 Ms. J ernig an submitted a complete d VA Form 21-526, Veteran' s Application for Compensation or Pension, seeking disability benef its for, among other conditions, back and stomach disabiliti es. I n a s t at em en t submitt ed with the application, Ms. J ernig an wr ote:

A lthoug h frequently used bo th by VA and the Court, the term " form al claim " is not defined b y st a t ut e o r 2 regulation. A s far as the Co urt can deter m ine, the us e o f th is term flow s from

38 C.F.R. § 3.1 60 (b ), w

hich defines an

" or igin al claim " as " A n initial form al app lication on a form pr escribe d by the Secr e t a r y," a nd referring to 39 C.F.R. §§ 3. 15 1 ( Claim s for d isability benef its) an d 3.1 52 (Claim s for death benefits ). Se e a lso Norris v. West , 1 2 Ve t. App. 41 3, 41 6 ( 19 99 ) ( " A

form al claim

is one that has been filed in the form pr escribe d b y

the Secretar y ." ).
2I previously fi l ed a claim for compensa tion at time of discharg e. The [veterans

service org an ization] office r assisted with this claim. Howeve r[,] VA sent claim back paper

work reque sting additional forms be fil l ed o u t

. (See attache d orig inal paper work sent in along with 5 pag es of [service medical rec ords]). I ag ain reque st consideration for compensa tion for my back [and]

. . . stomach condition[ s]

. . . . I am now enc losing VA [Form] 21-526 along w ith the orig inal paper s from 1995.

R. at 2171. Ms. J ernig an' s application was submitt ed with a letter from her authorized repr esenta tive that stated, "Plea se acc ept the attache d materia l as an orig inal application for benef its." R. at 2169. I n J uly 2002, a VA reg ional office g rante d di s ab i l i t y b enef its for g astroesopha g eal ref lux disease, chronic lumbosacra l strain, and residuals of an appende ctomy scar , all eff ectiv e as of October 31, 2001, the date VA rec eived Ms. J ernig an' s completed For m 21-526, which it trea ted as

an orig inal claim for benef its. Ms. J ernig an filed a Notice of Disag ree ment with the eff ective dates assig ned. She asse rted: I submitt ed an informal claim on a [Form] 2 1 -4138 on J uly 21, 1995, which was rec eived in the [reg ional office ] on J uly 31, 1995. Subsequent to VA rec eiving the documents, VA returned al l orig inal claim documents to me, with no letter of explanation. I contend that s p ec i fi c er ro r[s] of fac t or law in the proce ss of the
rec ording of my claim

. . . and failure of the VA to n o t i fy m e o f further action require d, wer e made

. R. at 1895. She ultim ately appea led to the B oard. I n Marc h 2010, the Board issued the decision on appe al

. T h e Bo ard deter mined that, as a matter of law, an eff

ective date prior to O ctober 31, 2001, could not be aw arde d. Specifica lly , the Boa rd relied on the combination of 38 U.S.C. § 5101(a) and 38 C.F.R. §§ 3.151(a) and 3.155(a) to conclude that, beca

use Ms. J ernig an did not return t h e formal application form to establish her orig inal claim, see 38 C.F.R. § 3.16 0 (b ), wi thin one y ear of Aug ust 1995, the ear liest possible eff ective date for her disability benef its was the date of her proper ly filed orig inal claim, October 31, 2001. I n her briefs, Ms. Jernig an ar g ued that (1) the re quirement in 38 C.F.R. § 3.155(a ) that she
return the formal application form within one y ear of rec eiving it was not in acc ordanc e with the law and should be struck down; (2) there is no substantive nece ssity to file a claim on a particula r form; and (3) VA violated her rig ht to due proce ss w hen it f ailed to inform her of the time limit to r eturn the form and the conseque nces for failing to do so. At oral arg ument, howeve r, Ms. J ernig an framed

3the iss u es as : "What is the proper eff ective date" for her awa rd of benef

its and "What is an application? " She conce ded that she receive d VA' s Aug ust 1995 l et t er with For m 1-526 attached and did not dispute that she did not return the f orm to VA withi n one y ear of receiving it. At oral
arg ument, neither party raised or discussed due proce ss or the Secre tary ' s authority to implement a time limi t in § 3.155(a).

II. ANALYSIS A. For m and Timing of

Claim The e ffe ctive date for a

n awa rd of compensation benef its is the date of VA's rece ipt of t he application or the date entitlement to the benef it arose , whicheve r is later. 38 U.S.C. § 5110(a) ; 3
38 C. F. R

. § 3.157(a) (2011). VA define s "Claim–Applica tion" as "a formal or informal communication in writi n g reque sting a deter mination of entitlement or evidenc ing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (1995). The parties ag ree that Mrs. J er n i gan 's J uly 4 1995 submissi on was an informal claim. "U pon rec eipt of an informal claim, if a formal claim has

n o t been filed, an application form will be forwa rded to the claimant for execution. I f re ce i v ed within 1 y ear from the date it was sent to the claimant, it will be considered filed as of the date of

re ceipt of the informal claim." 38 C.F.R. § 3.155(a) (2011). This means that, wher e a claimant submits an informal claim and then submits the formal application form require d by VA within one y ear of rec eiving it, if benef its are g rante d as a result of the claim, the eff ective date for pay

ment of benef its will be the da te VA r ece ived the informa l claim.

1. Nece ssity of Formal Application Form To the extent that Ms. Jernig an wishes to sta nd on the ar g ument in her brief that no formal appli ca t i o n form is require d, the Court finds this asser tion unpersua sive. Congr ess g rante d the Secre tary the authority "to presc ribe all rules and reg ulations which are nece ssary or appropr iate to

Spec ifically , sectio n 511 0( a) p ro vides: 3

U nl e ss specifically pr ovided otherw ise in this chapter, the eff ective date of an aw ard based on a n or igin al claim , a claim reo pened after fin al adj udication, or a claim fo r i nc r ease, of com pensation, dep endency and indem

nity com pensation, or pension, shall be fix ed in a c c o r d a nc e w ith the facts foun d, but shall n ot b e ear lier than the date o f receip t of ap plicatio n therefor.

T his regulation rem ains u nch ang ed. 4
4car

ry out the laws administered by [VA] and are consistent with those laws, including

. . . the forms of application by claimants under such laws." 38 U.S.C. § 501(a) (2). Congr ess also provided that "[a] spe cific claim in the form presc ribed by the Secre tary

. . . must be filed in order for benef its to be p ai d o r furnished to any individual under the laws administered by the Secre tary ." 38 U.S.C. § 5101(a)

. The Secre tary ' s interpre tation of those statutes as requiring a formal application form has long been acc epted by the Court beca use the form contains particula r fea tures that informal claims ty pically do not. See Fleshman v. Brown , 9 Vet.App. 548, 551 (1996) (stating that the cer tification and execution require ment contained in the formal application form "is an essential element of the form presc ribed by the Secre tary and aff ords evidentiar

y signific ance to the statements contained on the application and serve s as a rele ase to a llow V A to obta in the applicant' s medical rec ords" ). To the extent that no formal finding has been made that the Secre tary ' s interpre tation of sections 501(a) (2) and 5101(a) , contained in § 3.1 5 5 (a ), as requiring that VA rec eive a formal application form befor e benef

its may be paid is a valid exercise of the Secre tary ' s rulemaking authority , we make such a finding today

. See Mayo Foundat i on for Medic al Educ. and Researc h v. United States , 5 , 6

T his holding shoul d not be construed as overr ulin g pr ior cases in w hich the Court has deter m ined that a form al 5 app lication form w as not req uired. See, e.g ., Qua rles v. Derwinski , 3 Vet.App. 12 9, 13 7 (1 99 2) (holding that, w here VA
nev er sent the claim ant a form al app lication form pursuant to § 3.1 55 , the one-y ear tim e per iod to return it could not hav e begun to run and therefore the effectiv e d ate o f th e claim w as the date of the inf

or m al claim ). Sim ilarly , our holding do es not aff ect claim s filed in situ ations in w hich the Secretar y ' s ow

n regulations specify that the form al app lication form contem plated by § 3.1 55 (a) is not necess a r y. S e e , e

. g

. , Norris , 12 Vet.App. at 41 7 (holding that, w

here the claim ant w as alread y service-conn ected for a psy chiatric disability and a m edica l reco rd indic a t e d t ha t his conditio ned w or sened, no form al app lication for a total disability rating based on individual
un em plo y ability w as req uired beca use (1 ) a total disability rating based on individual un em plo y ability is sim

ply another
w ay t o ge t a 1 0 0% rating and (2 ) § 3.1 57 (a) pr ovides that medical exam inations that show a w or senin g o f an alread y service-conn ected conditio n are them selves inf or m al claim s for increases); 38 C.F.R. § 3.1 54 (" VA m ay accep t as a claim for benef its un der 38 U.S.C. § 115 1 . . . an y com m un ication in

w riting indicating an inten t to file a claim

. . . un der th e law s governin g entitlem ent to veterans' benefits for dis a b i l i t y or death due to VA hospital care, m edica l or surg ical treatm ent, exam ination, training and rehabilitatio n services, or com pensated w o r k t he r apy pr ogram , w heth er such
com m un ication is co ntain ed in a form al claim

. . . o r in any

other do cum ent." ).

T he Court acknow ledges that there m ay be ins tances in w hich VA has acted on inf

or m al claim s and granted 6 benefits w ithout a form al app lication ever being filed. How ever, the question raised by this case is w hethe r VA ' s req uiring a form al app lication form is a valid exercise of the Secretar y ' s rulem akin g auth or ity

. We hold that it is. If VA op ts in so m e cases to treat inf or m al claim s as de facto app lications, that is co nsi stent w ith a veteran- friendly m andate and shoul d be encouraged w hen po ssible (such as w

hen a veteran is otherw ise diligently pursuin g his claim , un like Ms. Je rnigan ). See Hod

ge v. W est , 155 F.3 d 1 35 6, 13 62 (Fed . C ir. 199 8) (statin g that " [t]his court and the Suprem e C ourt bo th hav e long reco gn ized that the character of the veterans' benefits statut es is strongly and un iquely pr o-claim ant" and descr ibing " the his toric ally non- adversar ial sy stem of aw ard ing benefits to veterans") ; Trilles v. W est , 13 Vet.App. 31 4, 32 6 ( 20 00 ) ( en banc) ( descr ibing "the VA pro -claim ant nonadversarial claim s adj udication pr ocess" ). If VA opts not to, how ever, the statute and re gu lation do not p erm it the Court to for ce VA to d o so

. 5131 S. Ct. 704, 711 (2011) ( Mayo Foundation ) (holding that, under Chevron U.S.A., Inc. v. Natural Res. Def. Council

, In c. , 467 U.S. 837 (1984), courts "ma y not disturb an ag ency rule unless it is

' arbitra ry or ca pricious in substance, or

manifestly

contra ry to the statute' ")

. 2. Timing and Eff

ect of Re turn of Formal Application Form a. Timing I n her briefs, Ms. J ernig an arg ues t hat, ev en if a formal application form is require d, there is no statutory basis for the Secre tary ' s one-y ear timeframe within which to return the formal application for

m cre ated by

§ 3.155(a)

. As briefly all u ded to above, when an ag ency , throug h a formally promulg ated reg ulation, interpre ts a statute it is char g ed with administering , judicial revie w of that interpre tation is g overne d by the two-step inquiry articula ted by the Supreme Court in Chevron

. Under Chevron , the court
must first deter

mine "w hether Congr ess has direc tly spoken to the prec ise questi o n at issue." 467 U.S. at 842. I f Congr ess has, "tha t is the end of the matter," and the only question rema ining is whether the reg ulation at issue is in acc ordanc e with cong ressional intent. Id. at 842-43. Although, section 5103 (1995) stated that "if such evidenc e i s n ot rec eived within one y ear from the date of such notification, no benef its may be paid or furnished by rea son of such application" Congr ess did not directly

speak to the timing of an a pplication for be nefits in sections 501(a )(2) and 5101(a ). Where, as here , Congr ess has not direc tly spoken to the prec ise issue, there is a "g ap" for the
ag ency to fill. See Gallegos v. Principi , 283 F.3d 1309, 1312 (F ed. Cir. 2002)

. I n this second step of the Chevron inquiry , courts may not disturb an ag ency rule unless it is "a rbitrar y or capr icious in substance, or manifestly contra ry to the statute." Mayo Foundation , 131 S. Ct. at 7 1 1

. I nstead,
courts will d ef

er t o an agency ' s "r easona ble interpre tation" of the statute. Id. at 714; Gallegos , 283 F.3d at 1312. Her e, the question is this: I s the Secre tary ' s cre ation of a time limit to file a formal application form a rea sonable interpre tation of Congr ess' s direc tion that VA presc ribe the "f orm" in which applications for bene fits may be made ? We hold that it i s. "F orm" has sever al definit i o n s, but for these purposes, the Court finds that the most
appropr iate definition is, "[e]stablished behavior or proce dure, usu[ally ] acco rd i n g t o custom or

6rule." B L A C K ' S L A W D I C TI O

N A R Y 723 (9th ed. 2004) [hereinaf ter B L A C K ' S ]. Under this definition, 7 it is eminently rea sonable to interpre t "f orm" –that is, the proce dure for filing an app l i cation for b e n e f its–to include a timing require ment, particula rly in the context of VA, wher e finality often play s a crucial role

. See 38 U.S.C. §§ 7105(b)( 1), (c) ("[A] notice of disag ree ment shall be filed within

one y ear from the date of mailing of notice of the result of initial revie w or deter mination.

. . ." "I f

no notice of disag ree ment is filed

. . . within the presc ribed period, the action or deter mination shall become final." ); 38 U.S.C. § 5109A(a ) (" A [final] decision by the Secre tary

. . . is subject to revision

on the g rounds of clea

r and unmistakable err or. I f evidenc e establishes the err or, the prior decision shall be reve rsed or revised." ); 38 U.S.C. § 5103 (1995) (" I f such evidenc e is not rec eived within one y ear from the date of such notificatio n , no benef its may be paid or furnished by rea son of such application." ); 38 U.S.C. § 5108 (" I f new and materia l evidenc e is prese nted or secur ed with respe ct
to a claim which has been [finally ] disallowed, the Secre tary shall reope n the claim and revie w the former dispositi on of that claim." ); Cook v. Principi , 318 F.3d 1334, 1339 (F ed. Cir. 2002) (en banc) (holding that, once a reg ional office decision is final, a claimant may only attempt to overc ome the finality of that decision in one of two way s: a reque st for revision of the decision based on clea r and unmistakable err or or a claim to reope n based upon new and materia l evidenc e); Russell v. Principi , 3 Vet.App. 310, 315 (1992) (" [T] here is finality in veter ans' benef its jurisprude nce.

. . . Once there is a final decision on the issue of ' clea r and unmistakable err or' beca use the [reg ional office ] decision

was not timely appea led

. . . that particula r claim of ' clea

r and unmistakable err or' may not be raised
ag ain." ). Fur ther, VA was reasona

ble i n es tablishing the one-y ear timing requirement for the return of the for mal application form. Section 5103(a) (1995) states that if the applica tion for bene fits is incomplete, the Secre tary shall notify the claimant of the evidenc e nece ss ar y to complete the application, and if that evidenc e "is not rec eived within one y ear from the date of such notification,

no benef its may be paid or furnished by rea son of such application." See also 38 C.F.R. § 3.158(a) (1 9 9 5 ) (stating that, wher e reque sted evidenc e is not rec eived within one y ear of the date of t h e

Oth er defini tions inclu de: " 1. T he outer shape or structu re of som ethin g, as disting uis hed f ro m it s substan ce 7
or m atter . .

. . 3. A

m od el; a sam

ple; an exam

ple . .

. . 4. T he custom ary m ethod of dr aftin g legal do cum ents, usu [ally ]
w ith fix ed w or ds, phrases, and senten ces

. . . . 5. A legal do cum ent w ith blank spaces to be fill ed in by the dr after

. . . ." B L A CK ' S at 72 3
7reque st, "f urther action will not be taken unless a new claim is rec eived." ). There fore , based on the 8 lang uag e of section 5103, it was not "a rbitrar y or capr icious in substance, or manifestly contra ry to the statute" for VA to require that a formal claim be filed within one y ear of no t i fi ca t i o n

. Mayo Foundation , 131 S. Ct . at 711. Although Ms. J ernig an arg ues that VA is not permitted to "' disguise the cre ation of additional require ments or limit ations as interpre tive regu l ati ons,' " Appellant' s Br ief (B r.) at 13 (quoting Dave nport v. Brow n , 7 Vet.App. 476, 482 (1995)) , that is simply not what happene d with the promulg ation o f § 3

. 1 55(a)

. Congr ess expre ssly deleg ated authority to VA to deter mine the
appropr iate "f

orms of application." 38 U.S.C. § 50 1 (a )( 2 ); s ee also 38 U.S.C. § 5101(a)

. That
express deleg ation, along with the Court's deter mination that the Secre tary ' s interpre tation of "f orm"
to include a timing requirement is rea sonable, is suffic ient to hold that § 3.155(a) is not "a rbitrar y or capricious i n substance, or manifestly contra ry to the s tatute." Mayo Foundation , 131 S. Ct. at 711. b. Effe ct At oral arg

ument, Ms. J ernig an conce ded that a formal application form is require d for VA
to adjudicate a claim and awa rd benef its, but arg ued that, in her case , the calc ulation of the amount of benef its to be paid should be calc ulated from the date VA rec eived the informal claim, reg ardle ss of the date VA rec eived the formal application form. I n support of this arg ument, Ms. J ernig an relied on section 5110(a) , the eff ective date statute, and § 3.1(p), which contains VA' s definition of

a claim. Ms. J ernig an asser ted that, beca

use section 5110(a) states that the eff ective date of an awa

rd is based on the date of the application and § 3.1(p) define s application as either an informal or formal writing that evince s an intent to seek benef its, the eff ective date of any benef

its awa rded must, in this

case , be the da te VA r ece ived her informal cla im. This interpreta tion is wit hout merit. 9 Where only an informal claim has been submit ted and the cla i m an t has failed to complete and return a formal application that he or she rec eived from the Secre tary , the application for benef its

T his regulation rem ains u nch ang ed. 8

Ms. Je rnigan attem

pts to b o l st e r he r p o si tion by asserting that her July 19 95 inf or m al claim had all the 9 attributes of a form al claim

. Bec ause, how ever, VA ' s req uirem ent of a form al app lication form is a valid exercise of the Secretar y ' s rulem akin g auth or ity , it m akes no diffe r e nce w hat inf or m ation Ms. Je rnigan ' s July 19 95 inf or m al claim contained; a form al ap plicatio n f or m w as a necessity

. 8is not in the form pre s cr ibed by the Secre tary and is considere d incomplete. See Fleshman ,

9 Vet.App. at 551 (" The appellant' s unexecuted claim form was an informal clai m an d wo u l d not have been in the form presc ribed by the Secre tar y u n t i l he returne d it with the reque sted information." ) (citing Klutt z v. Brow n , 7 Vet.App. 304, 306-07 (1994); 38 C.F.R. § 3.155(a) ); see also Quarles , 3 Vet.App. at 137 (holding by implication that, wher e a claimant fails to return to the Secre tary a formal claim application within on e y ea r o f t h e submissi on of his informal claim, his informal claim is not a "c og n i z able claim for eff ective date purposes" ). A claimant' s attempt to establish an orig inal claim rema ins incomplete until the formal application form is returne d with all of the re quested infor

mation. See 38 U.S.C. § 5103(a) (1995); Fleshman , 9 Vet.App. at 552; 38 1 0 C.F.R. § 3.160(b). Section 5110(a) provi d es: " Unless specifically provided otherwise in this chapter , the eff ective date of an awa

rd based on an orig inal claim

. . . shall be fix ed in acc ordanc e with the fac ts found, but shall no t b e ear lier than the date of rec eipt of application there for." (Emphasis added.) Chapter 51 includes section 5103(a) , which, in 1995, stated, in addition to that portion g iven above, that if the missing evidenc e was not rec eived by VA within one y ear of the reque st, "no benef its may be paid or furnished by rea son of such application." 38 U.S.C. § 5103(a) (1995). This portion of 1 1 section 5103(a) expressly ruled out the possibili ty of an eff ective date as of the date VA rec eived an informal (that is, incomplete) claim if the missing evidenc e was not rec eived within one y ear of VA' s reque st.

T od ay , sectio n 510 3( a) p ro vides, in per tinen t par t:

10
Upo n receip t of a com

plete or substan

tially com

plete app lication, the Secretar y shall notify the claim ant and the claim ant' s rep resentative, if any , of any inf or m ation, and any m edica l or lay evidence, not pr eviously pr ovided to the Secretar y that is necessary to substa ntiate the claim

. A s par t of that notice, the Secreta r y sh a l l i ndicate w hich po rtion of that inf

or m ation and evidence, if any , is to be pr ovided by the claim ant and w hich po rtion, if any , the Secretar y , in acco rd ance w ith section 51 03 A of this title and any other app licable pr ovisions of law , w ill attem pt to ob tain on behalf of the claim ant.

38 U.S.C. § 51 03 (a) (1 ).

T od ay , this po rtion is cod ified at 38 U.S.C. § 51 03 (b ): " In the case of inf or m ation or evidence that the 11 claim ant is notifi ed un der subsection (a) is to be pr ovided by the claim ant, such inf or m ation or evidence m

ust be received by the Secretar y

w ithin one y ear from

the date such

notice is sent."
9To the extent that Ms. J ernig an, in h e r briefs, attempts to distinguish section 5103(a) ' s reque st

for "evide nce" to co m p l et e the application, as opposed to "inf ormation" of t he ty

pe that would be provided on a formal application form, the Court ha s alre ady addre ssed this que stion a nd held that "e vidence " in the 1995 statute encompa ssed "inf ormation" as well. Robinette v. Brown , 8 Vet.App. 69, 79 (1995); see Davis v. Shinskei , 22 Vet.App. 352, 354 (2009) (" As interpre ted by the Court, [t he 1 9 9 5 v ersion of section 5103(a) ] require d the Secre tary to both notify a claimant reg ard i n g information neede d to complete an application for benef its and to specific ally advise a claimant who ref ers to the exis tence of rele vant evidenc e to submit that evide n ce." (empha sis added) ). I n 1 2 Robinette , the Secre tary attempted to arg ue that the word "e vidence " in section 5103(a) (1995) meant "tha t he mus t do no more than notify the claimant of what information i s nee ded to ' complete' the claim form—for ex ample, a social security number." 8 Vet.App. at 77. The Court held t hat s uch an interpr etation was too na rrow a view of the word. Af

ter analy zing t he ordinary meaning of the word " evidenc e," the Court stated: The Secre tary ' s interpre tation of the langua ge i n section 5103(a) [(1995)] to mean only that the S ecr et ar y must help t he person ' fill in the i nformation required by the blanks on the form,' such as a social secur ity number, conflicts with the plain meaning of ' evidenc e'

. That 'evidence ' means more than just information to be filled in on the application form , and that an application includes the form plus e videnc e in support of the claim flows not only from the plain meaning of the term but also from the VA Adjudication Procedur e Manual, M21-1 (M AN UA L M21-1). The MANUAL

M21-1 provides a s follows:

e. Defect ive or Incom plete Appli cation F orm s. I f an application is proper ly signe d but is so incomplete that development for the specific information is not fea sible, make a copy of the application and reta in it as the file copy

. Return the orig inal application to the claimant with
a reque st to co m p lete the indicated items chec ked in red. Ask the claimant to re turn it with any other re quired e vidence

. Id. at 78 (empha sis a dded; bold in orig inal) (citation omitted). I t is clea r from this discussion tha t, in 1995, "e vidence " in s ec t i o n 5 1 03(a) also encompa ssed t he "information" normally included on

A s a result of the Veterans Claim s A ssis tance A ct of 20 00 , the duties of the Secretar y to advise the claim ant 12 of m issin g inf

or m ation to com

plete the app lication and to advise the claim ant of the evidence necessary to substan tiate his claim hav e been explicitly separ ated, the for m er now app earing a t 38 U.S.C. § 5 1 0 2 ( b ) a nd t he l a tter, as noted in footnote 9, above, at 38 U.S.C. § 51 03 (a) (1 ). In 19 95 , how ever, th e duties w ere contained in a sin gle statut e th at u sed the w or d " evidence," w

hich w as interpre ted in Rob inette to inclu de the inf or m ation necessary to com plete an app lication.
10the formal application form. See i d

. at 79 (" [T] he Court rea ffirms that section 5103(a) [(1995)]

imposes more of an obli g ation on the S ecr etar y than mere ly to advise of the need to ' complete' all blanks on the cla im form.")

. I n light of this discussion, the Court concludes that, in most case s, the retur n of the for

mal application form controls the deter mination of the proper eff ective date, should benef

its be awa rded; that is, if it is returne d within one y ear , the eff ective date is the date of the informal claim, and if it is not, the eff

ective date is the date that it is returne d. But see, e. g

. , Qu a r l es , 3 Vet.App. at 137; Norris , 12 Ve t

. Ap p

. at 4 1 6 ; 38 C.F.R. §§ 3.154, 3.157. Specifica lly , if For m 21-526 is returne d within one y ear of its rec eipt–a time peri o d t h e C ourt has now deter mined is a rea sonable interpre tation of authoriz ing statutes–the eff ective date wi l l b e t h e d at e of the i nformal claim. 38 C

. F.R. § 3.155(a)

. I f it is not, the eff ective date will be the date of VA' s rec eipt of the for m al application form. See 38 U.S.C. § 5103(a) (199 5 ); 3 8 U. S

. C. § 5110(a) ; 38 C.F.R. §§ 3.158(a) , 3.160(b). B. D uty To Notify At oral a rg ument, Ms. Jernig an asser ted that, beca

use the Aug ust 1995 notice she re ceive d from VA acc ompany ing the formal application form was misleading or confusing , VA m ay not penalize her for failing to return the form within one y ear by deny ing her an eff ective date as of the date of her informal claim. T h i s ar gu ment, howeve r, assumes that VA had a duty to notify 1 3 claimants of the timef

rame within which to return the c laim form. The Court need not rea ch this question beca use, even assuming a duty to notify and defe ctive notice, ther e is nothing in the r ecor d that indicates that Ms. Jerniga n relied to he r detriment on the purportedly misleading notice. See Edwards v. Peak e , 22 Vet.App. 29, 34-35 (2008) (citing Day v. Shalala , 23 F.3d 1052, 1066 (6th Cir. 1994); see also Gilbert v. Shalala , 45 F.3d 1391, 1394 (10th Cir. 1995); Burks-M

arshall v. Shalala , 7 F.3d 1346, 1349 (8th Cir. 1993)). Fr om Aug ust 1995 to October 2001, the rec ord is entirely silent reg arding M s. J ernig an' s claim, and she has offe red no explanation on appea l for the 6-y ear delay in re t u rn i n g Fo rm 21-526 to VA. At oral arg ument, counsel for Ms. J ernig an asser ted that, althoug h he did not know whether Ms. J ernig an relied on the

Befor e VA , Ms. Je rnigan asserted that she did not receive the Aug us t 19 95 VA letter; how ever, she 13 abando ned that assertion be fore the Court.
11alleg edly misleading notice, one could presume that she had from the notice itself and the subsequent

delay in submitt ing the formal application form, but he offe red no authority for such a presumption, and our case law does not allow it. "T he rec ord simply does not support any asser tion that the notice lulled the appellant into failing to act, and [ h er ] argume nts must be reje cted beca use they are not supported b y any demonstrable prejudice ." Edwards , 22 Vet.App. at 35; see Shinseki v. Sanders , 556 U.S. 396, 409 (2009) (holding that the p ar t y as s er t i ng notice err or has the burden of demonstrating prejudice ). C. Due Proce ss I n her briefs, Ms. J ernig an contends that the Aug ust 1995 VA notice letter "w as not adequate
to in fo rm h er of the reg ulatory time limit ations by which she must respond or the signific ant
conseque nce to her claim if she failed to do so." Appellant' s Br

. at 15. She asser ts th at s u ch defic ient notice "a

mou nts to a failure of due proce ss, as it eff ectively denied her a proper understanding of her

responsibilities." Id. The Court disag ree s. This issue was addre ssed in o n e o f the Court's ear liest case s. I n Morris v. Derwinski , 1 Vet.App. 260 (1991), the Court c onsidered whether there was a due proce ss violation wher e VA failed to advise a claimant of the abandonmen t p ro v i s ions of 38 C.F.R. § 3.158 (1990) and the
conseque nces of

failing to submit the evidenc e re quested by VA. Tha t reg ulation provides: [W ]here evidenc e reque sted in connec tion with an orig inal claim

. . . is not furnished within 1 y ear afte r the date of reque st, the claim will be considere d abandone d. After the expiration of 1 y ear , further action wi ll not be taken unless a new claim is
rec eived. Should the rig ht to benef its be finally established

. . . compensa tion

. . . shall commence not ear lier than the da te of filing the new c laim.

38 C.F.R. § 3.158(a)

. Be cause § 3.158(a) is a reg ulation interpre ting section 5103(a) (1995), and 1 4 beca use that statute' s use of the word "e vidence " has been interpre ted to include "inf ormation" such
as t hat required on the formal application form, Robinette , 8 Vet.App. at 79, we conclude that, at least in claims controlled by the versions of these statutes and reg ulations extant in 1995, a claim was

In 1 99 1, w

hen Morris w as dec ided , sectio n 510 3( a) ( 19 95 ) w as cod ified at 3 8 U. S.C. § 30 03 (a) : 14

If a c laim ant' s app lication for benefits un der the law s adm inis tered by [VA] is incom plete, the [Se c r e t a r y] shall notify the c laim ant o f the evidence necessary to com plete the a pp lication. If such evidence is not received w ithin one y ear from the date of such

notification, no be nef

its m ay be pa id
or fu rnish ed by

rea son of such

ap plicatio n. 12also abandone d whene ver a formal application form was not returne d within one y ear afte r the date

of its rec eipt by a claimant, absent specia l cir cu m s t an ce s such as those identified in Quarles , 3 Vet.App. at 137, and Norris , 12 Vet. App. at 416. Acc ording ly , Morris direc tly controls the 1 5 , 1 6 dispositi on of Ms. J ernig an' s due proc ess ar g ument. I n Morris , the Court stated: Appellant raises a Due Process Clause arg ument that he was neve r notified that claims are subject to abandonme nt pursuant to 38 C.F.R. § 3.158(a)

. . . . [ T ]he Secre tary corr ectly arg ues that appellant' s contention is without leg al merit beca use the abandonme nt pursuant to 38 C.F.R. § 3.158(a) cannot be set aside or waived on g rounds of alleg ed ignor ance of reg ulatory require ments. The Suprem e Court has held that ever

y one dealing with the Gover nment is char g ed with knowledge o f fede ral statutes and lawfully promulg ated ag ency reg ulations. Fed. Crop Ins. Corp.
v. Merrill , 332 U.S. 380, 384–85.

. . (1947). Thus, reg ulations are binding on all who seek to come within t heir spher e, " reg ardle ss of actua l knowledg e of what is in the [r] egulations or of the hardship resulting from innocent ignor ance ." Id. at 385

. . . . "T he ' presumption' that eve ry o n e knows the law is simply a more colorful way of statin g t h e p rinciple that ignor ance of the law is irrele vant." 21 C. Wright & K. Gra ham, Fede ral Practice and Procedure § 5124, at 588 (1977) (footnote omitted). I n the case at hand, appellant, even though he may have been i g norant of the abandonm en t p ro visions of 38 C.F.R. § 3.158(a) , is nece ssarily char g ed with knowledg e of the reg ulation.

Morris , 1 Vet.App. at 265. I t is clea r, based on Morris , that Ms. J ern iga n' s due process arg ument based on lack of notice must also fail. Moreove r, as discussed above, there is no evidenc e that Ms. J ernig an relied on VA' s alleg edly misleading notice to her detriment. See Day , 23 F.3d at 1066

T he Court reco gn izes that it is gen erally not per m itted to aff irm the Bo ard ' s decisio n on a ground other than 15 that relied on by the Bo ard

. See Newhou se v. Nicholso n , 49 7 F.3d 12 98 , 13 01 (Fed

. Cir. 20 07 ) (citing Sec. & Exch an ge Comm'n v. Chene ry Corp. , 33 2 U.S. 19 4 (1 94 7) and referring to the " Chene ry do ctrine" ). T o t he e xten t that this statem ent could be construed as s uch , th e C ourt n otes th at th e Chene ry do ctrine is n ot im plicated w

hen "it is clear t

hat

' the agency w ould hav e reached the sam e ultim ate result' had it considere d the new ground." Fleshma n v. W est , 13 8 F.3d 14 29 , 14 33 (Fed

. Cir. 19 98 ) (q uoting W ard v. Merit Sys. Protectio n Bd. , 98 1 F.2d 52 1, 52 8 (Fed

. Cir. 19 92 )). Mor eover, althoug h the Bo ard did not expressly fin d that Ms. Je rnigan abando ned her July 19 95 claim w hen she failed to return the form al applicatio n form

w ithin one y ear, it

f ound th e n ecessary pr edica te facts for that conclusion, and there can be no other char acteriza tion of that claim in ligh t of section 5 10 3( a) ( 19 95 ), Davis , and § 3 .15 8( a).

We need not and do not reach the question of w heth er, un der the current versions of these statut e s and 16 regulations , failu

re to return the req uested inf or m ation (that is, the form al app lication form , w here req uired) w ould result in abando nm ent of the claim

. See 38 U.S.C. § 51 02 (b ). We also note that regard less of w heth er, as a result of her failu re to return t he fo r m al app lication form w ithin one y ear, Ms. Je rnigan ' s July 19 95 inf or m al claim is character ized as abando ned or sim

ply non- existen t, the eff

ective date of the " or igin al" claim (as defined by 38 C.F.R. § 3.1 60 (b ), see fn .2, supra) filed in Octobe r 2 00 1 r em ains u nch ang ed.
13(holding that, althoug h the denial notice that claimants rec eived "f ailed to sa tisfy the require ments of due proce ss, the only claimants who could have been injured b y t h e i nadequa cy are those who detrimentally relied on the inadequa te denial notice" ); Gilbert , 45 F.3d at 1394 ( "[A] plaintiff must demonstrate relianc e on the alleg edly defe ctive denial notices." ); Burks-M arshal l , 7 F. 3 d at 1349 (holding that an appellant has no standing to raise a due proce ss issue wher e he "ha s not shown that the alleg ed defic iency in the notice had any connec tion in fac t with h[i s] own failure to seek revie w of" the denial of

his claim). I n light of the above discussion, the Court c oncludes that the Boa rd' s deter mination that an eff ective date prior to October 31, 2001, for the awa rd of VA disability benef

its for g astroesopha g eal ref lux disease, a

lumbosacra l strain, and an appendec tomy scar was not war rante d was not clearly

er ro n eo u s

. 38 U.S.C. § 7261(a) (4); see Hanson v. Brown , 9 Vet.App. 29, 32 (1996) ; Gilber t v. Derwinski , 1 Vet.App. 49, 52 ( 1990).

III. CONCLUSION The Mar ch 23, 2010, B oard de cision is AFF I RMED.

14