Wilder v. McDonough
| Decision Date | 31 January 2023 |
| Docket Number | 21-4266 |
| Parties | Yohannes W. Wilder, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet.App. R. 30(a), this action may not be cited as precedent.
Kenneth H. Dojaquez, Esq. VA General Counsel
Before TOTH, Judge.
Veteran Yohannes W. Wilder appeals a Board decision that declined to readjudicate entitlement to an earlier effective date for a disability compensation award on the ground that his supplemental claim wasn't based on new and relevant evidence. The veteran's argument for why readjudication was warranted-and why the Board erred in denying it-is complicated and raises novel issues. But at bottom, Mr Wilder's basis for seeking an effective date from the day after his separation from service is that the time between when he left the Army and when he filed his application for compensation should be equitably tolled. Because equitable tolling is not permitted in this context, however, the underlying earlier effective date argument fails as a matter of law. Thus, the Court agrees with the Secretary that any purported Board error in denying readjudication is harmless and affirmance is appropriate.
Mr. Wilder served in the Army from 1989 to 1993. While serving in Korea in 1991, he suffered a head injury and other trauma when a train struck his vehicle. Save for one year from December 2006 to December 2007, Mr. Wilder has been incarcerated since 1996.
In January 2016, VA received his claims for service connection for a traumatic brain injury, a trauma-related mental disorder, and a scar to the right jawline, all stemming from the train accident. After some development, the VA regional office granted compensation for these disabilities in a May 2016 decision and assigned an effective date of January 25, 2016, the date his application was received. Mr. Wilder filed a timely Notice of Disagreement as to several aspects of VA's decision, including the effective date. After the regional office continued the effective date assigned, the veteran filed a Board appeal. In the appeal, Mr. Wilder did not dispute that he first filed the claims in January 2016. But he asserted that entitlement to compensation arose when he was injured in service and that he would have filed his compensation claims earlier but for his incarceration and the confusion caused by his traumatic brain injury. R. at 606. Accordingly, he argued that his compensation should have been made effective from the day following his discharge from service. R. at 607. A few days after seeking Board review, Mr. Wilder elected to have his claims processed according to the rules and procedures established by the Veteran Appeals Improvement and Modernization Act of 2017 (VAIMA), Pub. L. No. 115-55; he chose the supplemental claim review option. (This election effectively rescinded his legacy appeal to the Board.)
The regional office issued a May 2019 decision denying an earlier effective date for his compensation, concluding that the date currently assigned was properly based on the date VA received his application. Eight months later, in January 2020, Mr. Wilder submitted another supplemental claim that continued to seek an earlier effective date. He reiterated his theory that compensation should have been awarded from the day following his discharge from the Army because incarceration and service-connected disability prevented him from filing his claims sooner than he did.
In a February 2020 decision, the regional office denied an earlier effective date. It determined that Mr. Wilder's "personal statement submitted in connection with the current claim[s] does not constitute relevant evidence because it does not prove or disprove a matter at issue within your claim[s]." R. at 117; see also R. at 118, 120. The veteran appealed to the Board.
In the decision before the Court, the Board first acknowledged the veteran's contentions that, "since these disabilities were incurred in service, service connection should be established from the date of his discharge from service" and "that it does not matter when the evidence was submitted, it only matters what the evidence shows." R. at 6. The Board then recited the governing law on effective dates. But the Board never reached the underlying argument for an earlier effective date because it concluded that readjudication of the issue was not warranted. Specifically, the Board concluded that the veteran's assertions and arguments in his (latest) January 2020 supplemental claim regarding the proper effective date, the disabling effects of his service-connected conditions, and the limitations imposed by his incarceration, were all already part of the claims file. As such, they could not be considered "new" evidence. R. at 10. And the only new evidence submitted with the January 2020 supplemental claim-updated treatment records-were not "relevant" because they didn't "tend[ ] to prove or disprove a matter at issue with respect to the Veteran's claim for an earlier effective date." Id. Since no new and relevant evidence had been received, readjudication of the effective date issue was not permitted.
Mr. Wilder's principal goal is to achieve an earlier effective date for his compensation award (and an attendant award of past-due benefits). The general effective date rule is as follows: "Unless specifically provided otherwise in this chapter," the effective date of an award based on a claim for compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a)(1). An exception to this general rule is found in subsection (b): "The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such date of discharge or release." Id. § 5110(b)(1) (emphasis added).
Under the legacy system that existed before enactment of VAIMA, the only way to seek an earlier effective date for compensation-outside of a collateral attack based on clear and unmistakable error-was to pursue a timely appeal of the VA decision that assigned it and argue error. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Rudd v. Nicholson, 20 Vet.App. 296, 300 (2006). Mr. Wilder initially followed this traditional path when he appealed the effective date assigned in the May 2016 regional office decision and sought Board review.
But then he opted to take advantage of the new procedural mechanism for challenging a VA decision that Congress offered through VAIMA: the supplemental claim. A veteran "who disagrees with a prior VA decision may file a supplemental claim," and "[i]f new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record. "38 C.F.R. § 3.2501 (2022). Id. § 3.2501(a)(1). "New and relevant evidence received before VA issues its decision on a supplemental claim will be considered as having been filed in connection with the claim." Id. § 3.2501(a)(2).
A supplemental claim may be filed at "any time after the agency of original jurisdiction issues notice of a decision, regardless of whether the claim is pending . . . or has become finally adjudicated." § 3.2501. When an award results from a supplemental claim received more than one year after the decision that resolved the issue being challenged, the effective date for the award "shall not be earlier than the date of receipt of the supplemental claim." 38 U.S.C. § 5110(a)(3). But if a veteran "continuously pursue[s]" a claim from the time he files an initial application for a benefit through the filing of a supplemental claim, and if that supplemental claim is filed within one year of a specified event-such as a regional office decision-the effective date shall correspond to the date of the "initial application for a benefit." Id. § 5110(a)(2). In other words, continuous pursuit of a benefit via supplemental claims can preserve the ability to seek an earlier effective date, in accordance with the applicable rules, in the same manner as a direct appeal under the legacy system. See Aviles-Rivera v. McDonough, 35 Vet.App. 268, 280 (2022).
For present purposes, this all means that Mr. Wilder is keenly interested in the validity of his January 2020 supplemental claim, through which he seeks to argue that he is entitled to an effective date earlier than the January 25, 2016, date assigned. He challenges the Board's conclusion that his supplemental claim was not accompanied by new and relevant evidence. In particular, he contends that the earlier effective...
To continue reading
Request your trial