Costello v. McDonough
| Decision Date | 23 February 2023 |
| Docket Number | 20-2314 |
| Parties | Eugene Costello, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee |
| Court | United States Court of Appeals For Veterans Claims |
On Appeal from the Board of Veterans' Appeals
Michael S. Just, of Providence, Rhode Island, was on the brief for the appellant.
Richard J. Hipolit, Deputy General Counsel; Mary Ann Flynn Chief Counsel; Dustin P. Elias, Deputy Chief Counsel; and James L. Heiberg, all of Washington, D.C., were on the brief for the appellee.
Before PIETSCH, MEREDITH, and LAURER, Judges.
Appellant Eugene Costello appeals through counsel a January 28, 2020 Board of Veterans' Appeals (Board) decision in which the Board denied an initial disability rating higher than 10% for coronary artery disease (CAD) and an effective date earlier than October 2, 2018, for service connection for CAD. Record (R.) at 4-12. The sole argument that the appellant presents before the Court is whether 38 C.F.R. § 20.1305(a) is facially invalid because it provides illusory notice and necessarily denies all claimants their constitutional right to due process of law. Appellant's Brief (Br.) at 4-10. On September 8, 2021, the Court formed a panel to address that issue. This appeal is timely and the Court has jurisdiction over the matters on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will affirm the Board's decision.
Appellant Eugene Costello served on active duty in the United States Army from July 1962 to July 1965. R. at 2871. On October 2, 2018, he filed a disability compensation claim and on February 12, 2019, he was granted service connection for CAD as directly related to military service. R. at 243-47. The VA regional office (RO) assigned a 10% disability rating effective from October 2, 2018, the date of claim. Id. Mr. Costello timely disagreed with the disability rating and effective date assigned for his service-connected CAD. R. at 217-18. The RO issued a Statement of the Case (SOC) in November 2019 continuing the denial. R. at 88-136. Mr. Costello appealed to the Board later that month but did not submit any argument or request a hearing. R. at 26.
On December 30, 2019, Mr. Costello and his representative received notice from the Board that his appeal had been certified to the Board and that he had 90 days or until the Board issued a decision, whichever came first, to submit additional argument or evidence, or to request a change in representation. R. at 13. On January 28, 2020, 29 days after the Board's letter, the Board issued the decision presently under review, denying an initial disability rating higher than 10% for CAD and an effective date earlier than October 2, 2018, for service connection for CAD. R. at 5-12. In its decision, the Board noted that Mr. Costello's claim had been advanced on the Board's docket. Id. On July 15, 2022, the Court asked the Secretary to address whether the appellant had filed a motion to advance his claim on the Board's docket, or whether the Board had advanced the claim on the docket on its own motion. On August 1, 2022, the Secretary responded that the Board had advanced the claim on the docket on its own motion because the appellant was of "advanced age" as defined in 38 C.F.R. § 20.902(c)(1). Secretary's Aug. 1, 2022, Response at 1, Exhibit A. The Secretary also noted that the appellant's representative had, in a previous appeal, requested that the appellant's claim in that appeal be advanced on the docket because of his advanced age, and that the Board had granted the motion. Id. at 1-2, Exhibits B, C.
The appellant's sole argument on appeal is that § 20.1305(a) is facially invalid because it necessarily denies a claimant due process of law. Appellant's Br. at 4-10. The challenged regulation provides for "Procedures for legacy appellants to request a change in representation personal hearing, or submission of additional evidence following certification of an appeal to the Board of Veterans' Appeals." 38 C.F.R. § 20.1305 (2019).[1] Specifically, subsection (a) begins:
An appellant in a legacy appeal, as defined in § 19.2 of this chapter, and his or her representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or up to and including the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation.
38 C.F.R. § 20.1305(a) (2019).
The appellant argues that the language "or up to and including the date the appellate decision is promulgated by the Board, whichever comes first" is facially invalid and violates the Due Process Clause of the U.S. Constitution because it offers only illusory notice that is fundamentally unfair and does not afford claimants before the Board the right to be heard in a meaningful manner. Appellant's Br. at 5-6. Therefore, he appears to argue that all claimants are denied procedural due process when the Board issues a decision less than 90 days after certification. Id. at 6. The appellant further asserts that in this facial due process challenge, the Mathews factors apply and weigh in his favor. Id. at 6-8 (). The appellant argues that all three Mathews factors weigh in his favor because the private interest is in receipt of disability benefits, id. at 7 (citing Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009)); the risk of erroneous deprivation is significant because if the Board may promulgate a decision any time before the end of the 90-day period, a claimant in effect has no idea how long he or she has to request a hearing, gather and submit evidence, or request a change in representation, id. at 7-8; and no government interest could outweigh a claimant's need for notice of a date certain for carrying out those actions, id. at 8.
The appellant also argues that § 20.1305(a) conflicts with 38 C.F.R. § 19.36 () and renders § 19.36 moot because § 20.1305(a) fails to provide notice of the "time limit"-a date certain-before which an appellant may request a hearing, submit additional evidence, or request a change in representation. Id. at 9. He cites Prickett v. Nicholson, 20 Vet.App. 370 (2006), for the proposition that the two regulations together "'advise the appellant, and any representative, that the appellant has 90 days from the date of that letter in which to request a change in representation, request a personal hearing, and submit additional evidence.'" Id. (quoting Prickett, 20 Vet.App. at 382-83). The appellant asks the Court to strike from § 20.1305(a) the clause "or up to and including the date the appellate decision is promulgated by the Board, whichever comes first," and to hold that in all cases initially certified to the Board in the legacy appeals system, and absent an explicit waiver, an appellant shall be provided 90 days following the mailing of notice that an appeal has been certified to the Board, during which an appellant may request a hearing, submit additional evidence and argument, or request a change in representation. Id. at 9-11.
The Secretary responds that § 20.1305(a) expressly permits the Board to issue a decision before the 90-day period expires. Secretary's Br. at 3, 12. And the Secretary asserts that the appellant has not met his burden to demonstrate that the regulation is invalid and violates constitutional due process rights. Id. at 5-13. First, the Secretary asserts that the appellant misinterprets the purpose of the regulation, noting that the appellant's reading is contrary to the plain language and the regulatory history. Id. at 10-13. Rather than providing a "date certain" to submit evidence, the Secretary asserts that the regulation's stated purpose is to provide a "cut-off date" to assist the Secretary in orderly and prompt appeal processing and to clarify the evidence the Board considers in deciding an appeal. Id. at 10-13 (). The Secretary also argues that because the protected property interest is the benefit sought, not the Board's review, the entire appeal period must be considered in determining whether a veteran was deprived of notice and opportunity to be heard in pursuit of the desired benefit. Id. at 5-7. Accordingly, the Secretary argues that the appellant was given adequate notice and an opportunity to be heard over the course of his appeal. Id. at 7-10. Last, the Secretary asserts that the appellant did not argue that the regulation was unconstitutional as applied to him or violates principles of fair process, because he did not communicate that he intended to request a hearing, submit evidence, or seek a change in representation within the 90-day period or that the 29 days provided was not enough time to take those actions. I...
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