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

______________________ 

KENNETH M. CARPENTER, Law Offices of Carpenter 

Chartered, Topeka, KS, argued for claimant-appellant.

MARTIN F. HOCKEY, JR., Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, argued for respondent-appellee. 

Also represented by JOYCE R. BRANDA, ROBERT E.

KIRSCHMAN, JR.; DAVID J. BARRANS, MARTIE ADELMAN, 

Office of General Counsel, United States Department of 

Veterans Affairs, Washington, DC.
2 CARTER v. MCDONALD

JOHN TAYLOR HEBDEN, Sidley Austin LLP, Washington, DC, for amicus curiae The National Veterans Legal 

Services Program. Also represented by EUGENE R. ELROD. 

_____________________ 

Before REYNA, PLAGER, and TARANTO, Circuit Judges.

TARANTO, Circuit Judge. 

Harmon Carter applied to the Department of Veterans Affairs to reopen an earlier claim for veterans’ benefits. 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 

parties’ 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 Board denied Mr. 

Carter’s claim, without having received new evidence 

from Mr. Carter, the Veterans Court affirmed. We conclude that the Veterans Court had an incorrect understanding of the law governing the notice defect in this 

case, and we vacate the Veterans Court’s decision and 

remand for Mr. Carter to have the opportunity to submit 

his new evidence. 

BACKGROUND

Mr. Carter served in the U.S. Army from 1965 to 

1967. In 1989, Mr. Carter filed a claim for disability 

benefits for an injury to his lower back, which the Department 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 but 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 complete claim file. 

In June 2010, the new counsel and the government 

negotiated and filed a joint motion in the Veterans Court 

requesting 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 additional evidence and 

argument regarding his claim.” J.A. 68 (citing Kutscherousky 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, 2010, 

remanding the case 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 prepared a letter (the “90-day letter”), dated August 6, 2010, 

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 stated 

that, if Mr. Carter chose “to submit any additional argument or evidence, it must be submitted . . . within 90 

days of the date of this letter.” Id. (italics added, bold in 

original); see J.A. 71. The Board sent the letter to Mr. 

Carter and his former representative, the Disabled American 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. 
4 CARTER v. MCDONALD

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 copied 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 benefits. 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 incident 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 was required to review his file to determine 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 Court affirmed the Board’s decision. 

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 545– 

46. And, addressing a broader legal question not specifi-
CARTER v. MCDONALD 5

cally tied to the notice issue, it concluded that a veteran 

and the government may agree to narrow the scope of the 

Board’s obligation to review the record on remand, even if 

no narrowing occurred in this case. Id. at 542–43. Mr. 

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

DISCUSSION

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 finding a notice deficiency cured. The appeal therefore presents a question of 

law falling within our appellate jurisdiction. 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 evidence until the deadline had passed. The Veterans Court 

concluded that the Board’s initial notice error was 

“cured,” pointing to the facts 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. Because we cannot 

find the uncured notice error harmless, we vacate the 

Veterans Court’s decision and remand 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 remand. 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 regarding 
6 CARTER v. MCDONALD

consideration of issues raised by the record. See Robinson, 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 applicability of 38 C.F.R. § 1.525(d) in this case. 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 notice can only sensibly 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 objections”); 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 opportunity to take appropriate action before the deadline . . . 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 meaningful opportunity to 

respond”); Bell v. Parkway Mortg., Inc. (In re Bell), 309 

B.R. 139, 157 (Bankr. E.D. Pa. 2004) (notice of a borrow-
CARTER v. MCDONALD 7

er’s right to rescind a loan, received after the rescission 

deadline expired, was “meaningless”); 32 Wright & Koch, 

Fed. Prac. & Proc.: Judicial Review § 8222 (1st ed. 2006) 

(“Fairness . . . requires that the notice be given sufficiently prior to the adjudication so as to allow the party to 

adequately participate.”). The government cites no authority 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 “cure” of the 

notice defect must mean some source providing notification 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 according to its unambiguous terms, i.e., unless the law informed his counsel that, despite the unambiguously 

stated deadline, Mr. Carter was legally entitled to submit 

evidence past the deadline and have it considered by the 

Board exactly as if it had been submitted before the 

deadline. There was no such law.

To begin with, no clear countermanding of the unambiguous Board letter can be found in a regulation discussed 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 counsel 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.

 
8 CARTER v. MCDONALD

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 government 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, Kutscherousky 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 parameters set forth in 38 C.F.R. §§ 19.37, 

20.1304(a), without a showing of good cause, additional evidence and argument, or to request 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. That language 

strongly tends to reinforce 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 language 
CARTER 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 regulation 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 

interpretation of Kutscherousky. 

The Veterans Court cited Matthews v. Principi, 19 

Vet. App. 23 (2005), but the existence of that decision on 

the books cannot have provided Mr. Carter’s counsel the 

clear letter-overriding notice required for a cure here. In 

Matthews, the court held that an attorney’s receipt of a 

Statement of the Case contained in a response to a request for a veteran’s claim file (under specific circumstances not present here) constituted 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, 

contrary 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 negotiated the remand to 

2 At argument, counsel for the government suggested the opposite, stating that, under Kutscherousky’s 

language, the 90-day period commences upon mailing the 

notice “to the appellant . . . , and so there’s no dispute that 

Mr. Carter did get the notice here.” Oral Arg. at 24:15–

24:50.

 
10 CARTER v. MCDONALD

the Board, he did not secure merely the opportunity to ask

permission to submit new materials on remand; he requested, and the government guaranteed, an unrestricted 

right to submit new materials for a 90-day period following the required mailing. No law gave Mr. Carter’s counsel 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 (emphases added). Even if the Veterans Court is 

correct, but cf. Gov’t Br. at 16 n.4 (the government states 

that it is “not aware of the authority for the Veterans 

Court’s statement here”), an obligation to “consider arguments” is not an obligation to consider evidence as if it 

were timely submitted. The Veterans Court later stated, 

without identifying any authority 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 evidence 

as if timely submitted, much less that this was clear at 

the time. And, although the Veterans Court often grants 

relief from appeal deadlines missed on account of an 

initially defective (but later-corrected) notice, see, e.g., 

Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992), there 

was no clear basis for relying on that 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. 

That 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 received the notice in a timely fashion, she would have submitted no evidence. The government has not sufficiently made such an argument on 

appeal, at most making a passing assertion inadequate to 

preserve the point. And in any event, we have no basis 

for finding harmlessness of the notice error.

CONCLUSION

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 accordance with the terms of the original 

remand order from the Veterans Court. 

Costs awarded to appellant.

VACATED AND REMANDED