# United States **Court of Appeals**  **for the Federal Circuit**

______________________ HARMON CARTER, JR., Claimant

- Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2014

- 7122

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 12

- 218, Chief Judge Bruce E. Kasold, Judge Lawrence B. Hagel, Judge William A. Moorman.

______________________

Decided: July 21 , 2015

______________________

K ENNETH M. C ARPENTER , Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant

- appellant.

M ARTIN F. H OCKEY , J R

. , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent -appellee. Also represented by J OYCE R. B RANDA , R OBERT E. K IRSCHMAN , J R .; D AVID J. B ARRANS , M ARTIE A DELMAN , Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.CARTER v. MCDONALD 2

J OHN T AYLOR H EBDEN , Sidley Austin LLP, Washin gton, DC, for amicus curiae The National Veterans Legal Services Program. Also represented by E UGENE R. E LROD

.

_____________________
Before R EYNA , P LAGER , and T ARANTO , Circuit Judges.

T ARANTO , Circuit Judge

. Harmon Carter applied to the Department of Vete rans Affairs to reopen an earlier claim for veterans’ ben efits. After the Board of Veterans’ Appeals denied the reopened claim on the merits

, Mr. Carter appealed to the Court of Appeals for Veterans Claims , which , by the

p arties’ agreement, remanded to the Board to give Mr. Carter the opportunity to submit additional evidence. But the Board then failed to give proper notice of the Board

- set deadline for filing such evidence, and Mr. Carter missed the deadline . When the Bo ard denied Mr. Carter’s claim

, without having received new evidence from Mr. Carter, the Veterans Court affirmed. We co nclude that the Veterans Court had an incorrect unde rstanding of the law governing the notice defect in this case, and w e vacate the Vet erans Court’s decision and remand for Mr. Carter to have the opportunity to submit his new evidence.

B ACKGROUND Mr. Carter served in the U.S. Army from 1965 to 1967. In 1989, Mr. Carter filed a claim for disability benefits for a n injury to his lower back, which the D epartment of Veterans Affairs (VA) denied in 1990. He sought to reopen the claim in 2005 by filing new evidence that he had aggravated the injury in the course of his military service. In 2006, the VA reopened Mr. Carter’s claim b ut denied it on the merits

, and the Board affirmed in September 2009. While Mr. Carter’s appeal to the Veterans Court was pending, Mr. Carter changed counsel.CARTER v. MCDONALD 3

He filed VA Form 21

- 22a in March 2010, naming a new, private attorney as his representative in place of the Disabled American Veterans. Around the same time, the new counsel also requested a copy of Mr. Carter’s co mplete claim file.
In June 2010, the new counsel and the government negotiated and filed a joint motion in the Veterans Court requestin g partial vacatur of the September 2009 Board decision and an order remanding the case for the Board to address several errors in its decision. J.A. 64

– 69 . In the motion, the parties agreed that, “[o]n remand, [Mr. Carter] should be free to submit additi onal evidence a nd argument regarding his claim. ” J.A. 68 ( citing Kutsche rousky v. West , 12 Vet. App. 369, 372 (1999) (per curiam)

, and Kay v. Principi , 16 Vet. App. 529, 534 (2002) ) . The Veterans Court granted the motion on July 6, 20 10
, remanding the ca se in accordance with the “instructions in the joint motion,” which the court “incorporated

. . . by reference.” J.A. 70. The court sent the decision to both parties.
The Board took over the matter a month later. It pr epared a letter (the “90

- day letter”) , dated August 6, 201 0, designed to notify Mr. Carter that his “case ha[d] been received by the Board following issuance of the [Veterans] Court’s remand decision,” and that proceedings before the Board were ready to begin. J.A. 71. The letter st ate d that

, if Mr. Carter chose “to submit any additional arg ument or evidence, it must be submitted

. . . within 90 days of the date of this letter .” Id. ( italics added, bold in original ); see J.A. 7 1

. The Board sent the letter to Mr. Carter and his former repre sentative, the Disabled Ame rican Veterans, but not to his new counsel. J.A. 73. It is undisputed that Mr. Carter’s counsel never received the letter within the 90

- day period, which ended on November 4, 2010

.CARTER v. MCDONALD 4

On December 13, 2010 , the VA sent the new counsel a copy of Mr. Carter’s claim file, nearly nine months after she requested it. J.A. 3

– 4. Although she had filed the request before the remand order issued, a copy of the 90

- day letter had been added to Mr. Carter’s claim file before it was cop ied and sent to her. She admittedly did not read the file upon receipt, and thus did not see the letter. J.A. 14

– 15. In February 2011, without hearing from Mr. Carter or his attorney, the Board acted on the remanded case, again denying his claim for bene fits . J.A. 75

– 87. Like the 90

- day letter, the Board decision did not immediately reach Mr. Carter’s attorney. She did not receive a copy of the February 2011 Board decision until December 2011, at which point she filed an appeal to the Veterans Court for Mr. Carter

. Before the Veterans Court

, Mr. Carter argued that, but for the Board’s mistake in not sending his attorney the 90

- day letter

, he would have provided the Board with evidence supporting a new theory of entitlement , namely, that a specific i ncident during his Army service caused a

new back injury (rather than merely aggravating an old one). He also argued that some evidence supporting this new theory already existed in the record and that, under Robinson v. Shinseki , 557 F.3d 1355, 1362 (Fed . Cir. 2009), the Board w as required to review his file to dete rmine the merits of that new theory— whether or not the parties’ joint motion for remand arguably narrowed the scope of the Board’s task on remand.

The Veterans C ourt affirmed the Board’s decisi on. See Carter v. Shinseki , 26 Vet. App. 534 (2014). It held that the Board’s notice error was cured by , among other things, his new counsel’s receipt of her client’s complete claim file , even though the explicitly stated deadline for submitting new evidence had passed by then

. Id. at 54 5– 46

. And , addressing a broader legal question not specif i-CARTER v. MCDONALD 5

cally tied to the notice issue, it con cluded that a veteran and the government may agree to narrow the scope of the Board’s obligation to review the record o n remand, even if no narrowing occurred in this case. Id. at 542

– 43

. Mr. Carter appeals under 38 U.S.C. § 7292(a).

D ISCUSSION Mr. Carter appeals the Veterans Court’s decision that the Board did not deprive him of the required notice of the opportunity to submit new materials, despite the Board’s admitted failure to notify his counsel of the deadline for submitting those materials until after the deadline had passed. The appeal concerns only the legal correctness of the Veterans Court’s rationale for fi nding a notice deficiency cured. The appeal therefore presents a question of law falling within our appellate jurisdic tion. 38 U.S.C. §§ 7292(a), (c), (d)(1)

. The Board failed to give Mr. Carter’s counsel notice of an unambiguously stated deadline for submitting ev idence until the deadline had passed. The Veterans Court concluded that the Board’s initial notice error was

“ cured ,” pointing to the fact s that Mr. Carter’s counsel had advance knowledge that remand proceedings would be forthcoming, received the claim file (containing the 90

- day letter) after the evidence

- submission deadline had passed, and then took no action until she received the Board’s February 2011 decision in December 2011. We conclude otherwise as a matter of law

. B ecause we cannot find the uncured notice error harmless, we vacate the Veterans Court’s decision and rem and with instructions
to return the case to the Board to allow Mr. Carter to submit new materials according to the procedures agreed to in the earlier joint motion for r emand. As the record may change on remand, we do not decide whether the Veterans Court committed any error with respect to whether a remand motion like the one in this case could alter the Board ’s otherwise

- applicable duty regardingCARTER v. MCDONALD 6

consideration of issue s raised by the record. See Robi nson , 557 F.3d at 1362

. The Board expressly and unambiguously gave Mr. Carter precisely 90 days to submit evidence on remand

, the period starting the day the Board mailed him the letter informing him of that opportunity: “any additional argument or evidence

. . . must be submitted

. . . within 90 days of the date of this letter .” J.A. 71 ( italics added). As one would expect given the nature of a client’s reliance on counsel, a VA regulation required the Board to “suppl[y ]” Mr. Carter’s “recognized attorney,” as defined by 38 C.F.R. § 14.629, “with a copy of each notice to the claimant respecting the adjudication of the claim,” § 1.525(d). The government does not dispute the applic ability of 38 C.F.R. § 1.525(d) in this c ase. That regulation required the Board to give Mr. Carter’s counsel notice of the deadline running from the Board’s mailing of the 90

- day letter to Mr. Carter.
That regulatory requirement of no tice can only sens ibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed. We could hardly interpret the notice requirement any differently given the nature of “notice.” See

, e.g. , Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 314 (1950) (notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their obje ctions”); In re Smith , 582 F.3d 767, 780 (7th Cir. 2009) (notice must come sufficiently in advance of a critical deadline to give the affected party “a reasonable oppo rtunity to take appropriate action before the dea dline

. . . passe[s]” ) ; Doe v. U.S. Dep’ t of Justice , 753 F.2d 1092, 1112 (D.C. Cir. 1985) (notice must be given “ before a hearing if there is to be a mea ningful opportunity to respond”); Bell v. Parkway Mortg., Inc. ( In re Bell) , 309 B.R. 139, 157 (Bankr. E.D. Pa. 2004 ) (notice of a borro w-CARTER v. MCDONALD 7

er’s right to rescind a loan, received afte r the rescis sion deadline expired, was “meaningless”); 32 Wright & Koch, Fed. Prac. & Proc.: Judicial Review § 8222 (1st ed. 2006 ) (“Fairness

. . . requires that the notice be given sufficien tly prior to the adjudication so as to allow the party to adequat ely participate.”). The government cites no a uthority to the contrary. And the Board undisputedly failed to meet the pre

- deadline

- notification requirement.

The Veterans Court nevertheless held that the notice

error was “cured.” At least in this context, a “cur e ” of the notice defect must mean some source providing notific ation of the same opportunity a correct notice would have provided. There was no such cure here. The only notification Mr. Carter’s counsel ever even arguably received was the 90

- day letter itself (as part of the claim file)

. 1 Without an additional notice, we do not see how the notice failure could have been cured unless the applicable law itself contemporaneously put Mr. Carter’s counsel on notice that the 90

- day letter could not be applied accor ding to its unambiguous terms, i.e. , unless the law i nformed his counsel that

, despite the unambiguous ly stated deadline, Mr. Carter was legally entitled to submit evidence past the deadline and have it considered by th e Board exactly as if it had been submit ted before the deadline

. There was no such law. To begin with, no clear countermanding of the una mbiguous Board letter can be found in a regulation di scussed by the parties, 38 C.F.R. § 20.1304(a) . That regulation provides that “[a]n appellant and his or her representative, if any, will be granted a period of 90 days

1 Because the required notice was of the starting of the 90

- day clock, it is not enough that Mr. Carter’s cou nsel participated in the remand negotiations and received the Veterans Court’s remand order

— which did not give, and could not have given, notice of the starting date.CARTER v. MCDONALD 8

following the mailing of notice to them that an appeal has been certified to the Board ” and specifies certain rules. It is enough for present purposes to note that the gover nment itself insists that the regulation does not apply at all here . Citing the “certified to the Board” language, the government argues that the regulation applies only to cases that arrive at the Board on appeal from the regional office, and not to cases arriving at the Board by way of remand from the Veterans Court. Gov’t Br. 21; see Carter

, 26 Vet. App. at 537 n.4 (“[N]o provision of § 20.1304 applies to a remand from the Court to the Board

. . . .”). The government ’s argument of inapplicability of the regulation means, at a minimum, that the regulation did not clearly give notice that the deadline stated in the Board’s 90

- day letter was legally inoperative.

Neither did the Veterans Court decision, Kutsche rousky v. West , 12 Vet. App. 369, 372 (1999) (per curiam)

, which was cited in the joint motion to remand that the remand order incorporated, J.A. 68, 70. The cited portion of Kutscherousky states: [I] n every case in which the Court remands to the Board a matter for adjudication

. . . an appellant is entitled, until 90 days have expired after the Board mails to the appellant a postremand notice to the following effect , to submit

, under the p arameters set forth in 38 C.F.R. §§ 19.37, 20.1304(a), without a showing of good cause, ad d itional evidence and argument, or to reques t by the end of such 90 days a “hearing on appeal” at which the appellant may submit new evidence, to be considered by the Board

. . . . Kutscherousky , 12 Vet. App. at 372

. Th at language strongly tends to reinfo rce rather than override the Board’s letter in this case when it refers to the submission period as starting when “the Board mails to the appellant a postremand notice.” And the subsequent languageCARTER v. MCDONALD 9

provides no clear contrary message in referring to § 20.1304(a) . That reference, even if it overcame the government’s objection to the applicability of the regul ation to this remand case, might be only to the rules of the regulation separate from the regulation’s language about “the mailing of notice to them” (the claimant and his or her representative)

. 2 We think it too strained to suggest (if the government does) that the unambiguous Board letter could be clearly seen at the time to have been overridden by the indirect incorporation of one possible inter pretation of Kutscherousky

. The Veterans Court cited Matthews v. Principi , 19 Vet. App. 23 (2005), but th e existence of th at decision on the books cannot have provided Mr. Carter’s counsel the clear letter

- overriding notice required for a cure here. In M atthews , the court held that an attorney’s receipt of a Statement of the Case contained in a response to a r equest for a veteran’s claim file (under specific circu mstances not present here) constitute d the required mailing, which then started the clock for filing an appeal

. Id. at 29. The ruling that the particular clock restarted in that context did not provide Mr. Carter’s counsel clear notice that the clock restarted in the present context,
contra ry to the clear deadline in the Board letter

. Moreover, the law certainly gave Mr. Carter’s counsel no clear notice that any post

- deadline opportunities for discretionary relief from the Board for a late filing were the same as the pre

- deadline entitlement to consideration of evidence. When Mr. Carter negotiate d the remand to

2 At argument, counsel for the government sugges ted the opposite, stating that, under Kutscherousky ’s la n guage , the 90

- day period commences upon mailing the notice “to the appellant

. . . , and so there’s no dispute that Mr. Carter did g et the notice here.” Oral Arg. at 24:15

– 24:50.CARTER v. MCDONALD 10

the Board, he did not secure merely the opportunity to ask permission to submit new materials on remand; he r equested, and the government guaranteed

, an unrestricted right to submit n ew materials for a 90

- day period follo wing the required mailing. No law gave Mr. Carter’s cou nsel notice that , upon receiving the 90

- day letter after the deadline had run, she still had the right to have the Board consider late

- submitted evidence as if it had been timely submitted.

The Veterans Court did not cite anything providing such notice. It said that Mr. Carter would have been entitled to “raise[] arguments to the Board” even after the final decision had issued and that “the Board would have been required to consider them.” Carter , 26 Vet. App. at 546 (emphase s added). Even if the Veterans Court is
correct
, but cf. Gov’t Br. at 16 n.4 ( the government state s that it is “not aware of the authority for the Veterans Court’s st atement here ” ), an obligation to “consider arg uments” is not an obligation to consider evidence as if it were timely submitted. T he Veterans Court later stated

, without identifying any au thority for the proposition, that Mr. Carter was not “prevented from presenting additional argument or evidence

. ” Carter , 26 Vet. App. at 546. That he was not “prevented from presenting” evidence does not mean that the Board was obliged to consider the e vidence as if timely submitted, much less that this was clear at the time. And, a lthough the Veterans Court often grants relief from appeal deadlines missed on account of an initially defective ( but later -c orrect ed ) notice, see , e.g. , Ashley v. Derwinski

, 2 Vet. App. 307, 311 (1992), th ere was no clear basis for relying on th at practice as applying to the non

- appeal deadline at issue here.
In these circumstances, we conclude that the Veterans Court legally erred in finding a cure of the notice defect. T hat conclusion requires a vacatur and remand unless we find the error to be harmless. See 38 U.S.C. § 7261(b)( 2 ); Shinseki v. Sanders , 556 U.S. 396, 406 (2009). We cannot.CARTER v. MCDONALD 11

The Veterans Court made no determination that, if Mr. Carter’s counsel had receiv ed the notice in a timely fas hion, she would have submitted no evidence. T he gover nment has not sufficiently made such an argument on appeal, at most making a passing assertion inadequate to preserve the point . A nd in any event, we have no basis for find ing harmlessness of the notice error.

C ONCLUSION

For the foregoing reasons, we vacate the decision of the Veterans Court

, and we remand the case for a further remand to the Board, to which Mr. Carter can submit new materials in accord ance with the terms of the original remand order from the Veterans Court

. Costs awarded to appellant.

VACATED AND REMANDED