IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIlllIIIIIIIIIllIIIIIIIIIIIIIIlUllIIIllIIIIIIIIUSFC2008-7058-01

{A4ED4F69-5 B77-4D9B-BC53-A4D3C9C3 B3C2}

{95307}{20-080506:135213}{042308}

APPELLANT'SBRIEF

!I 2008-7058

W_ST/CR8

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UNITED STATES COURT OF APPEALSFOR THE FEDERAL CIRCUIT

ALLISON E. RANCHER,

Claimant-Appellant,

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JAMES B. PEAKE, M.D.,

Secretary of Veterans Affairs,

Respondent-Appellee.

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APPEAL FROM THE UNITED STATES COURT OF APPEALSFOR VETERANS CLAIMS IN 02-1142

JUDGE ALAN G. LANCE, SR.

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IBRIEF OF APPELLANT ALLISON E. RANCHER

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April 23, 2008

FILED$ coURT 0 FAPPEALSFOR

U. :[HE FEDERALCIRCUIT

APR _ 3 ?.o0_

jMtHO_BP,L'_CLERK

JOHN F. CAMERONP.O. Box 240666

Montgomery, AL 36124TELEPHONE: (334) 502-9500

Attorney for Appellant,Allison E. Rancher

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2008-7058

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

ALLISON E. RANCHER,

Claimant-Appellant,

V,

JAMES B. PEAKE, M.D.,Secretary of Veterans Affairs,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES COURT OF APPEALSFOR VETERANS CLAIMS IN 02-1142

JUDGE ALAN G. LANCE, SR.

BRIEF OF APPELLANT ALLISON E. RANCHER

JOHN F. CAMERONP.O. Box 240666

Montgomery, AL 36124TELEPHONE: (334) 502-9500

April23,2008

Attorney for Appellant,Allison E. Rancher

CERTIFICATE OF INTEREST

Pursuant to Federal Circuit Rules 28(a)(1) and 47.4, counsel for Allison E.

Rancher certifies the following:

1. The full name of every party or amicus represented by me is:

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Allison E. Rancher

2. The name of the real party in interest, if different than the above, is:

None

3. The parent companies, subsidiaries, and affiliates that have issued shares to

the public, of the party or amicus curiae represented by me are:

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None

4. The name of all law firms and the partners or associates that appeared for

the party now represented by me expected to appear in this court are:

John F. Cameron, Esq.P.O. Box 240666

Montgomery, AL 36124-0666(334) 502-9500

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TABLE OF CONTENTS

Page(s)

CERTIFICATE OF INTEREST ........................................................................ i

TABLE OF CONTENTS .................................................................................. ii

TABLE OF AUTHORITIES ............................................................................ iv

STATEMENT OF RELATED CASES ........................................................... vii

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STATEMENT OF SUBJECT MATTER AND APPELLATE REVIEW ........ viii

STATEMENT OF THE ISSUES ...................................................................... 1

STATEMENT OF THE CASE ...................................................... 2

STATEMENT OF THE FACTS ..................................................... 4

SUMMARY OF THE ARGUMENT ................................................. 7

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ARGUMENT ........................................................................... 9

I. STANDARD OF REVIEW ............................................ 9

II. THE VETERANS COURT IMPROPERLY INTERPRETEDTHE SECRETARY'S REGULATIONS AND THEREFORE

CONCLUDED THAT HER PENDING, UNADJUDICATEDORIGINAL JANUARY 31, 1985 CLAIM WAS FINALLYDECIDED BY FOUR 1988 DECISIONS .......................... 11

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A. The Veterans Court improperly affirmed the Board'sDecision on a new basis not considered by the Board and

engaged in improper initial fact-finding on this new basis... 13

B. The Veterans Court misinterpreted the Secretary'sRegulation on Notices of Disagreements and thereforeimproperly concluded that Ms. Rancher had not filed aNotice of Disagreement .......................................... 18

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C. The Veterans Court misinterpreted the Secretary's Regulations

on Original Claims and Claims for Increased Ratings andtherefore improperly concluded that the VA's 1988 Ratingdecisions to new claims for increased ratings denied Ms.Rancher's original claim ....................................... 20

III. THE VETERANS COURT MISINTERPRETED THE VA'SDUTY TO STATE REASONS AND BASES FOR ITSCONCLUSION THAT THE APPELLANT HAD WITHDRAWNHER TDIU CLAIM AND MISINTERPRETED THE VA'SDUTY TO LIBERALLY CONSTRUE ANY DOCUMENTTHAT PURPORTS TO WITHDRAW A CLAIM .............. 28

CONCLUSION ..................................................................... 36

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TABLE OF AUTHORITIES

CASE AUTHORITY

Page(s)

Bailey v. Prineipi, 351 F.3d 1381, 1384 (Fed. Cir. 2003), citingJaquay v.

Prineipi, 304 F.3d 1276, 1289 (Fed. Cir. 2002) (en bane) ........................... 10

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Beyrle v. Brown, 9 Vet. App. 24, 27 (1996) ................................................. 19

EFv. Derwinski, 1 Vet. App. 324, 326 (1991) ............................................. 32

Fenderson v. West, 12 Vet. App. 119, 125-126 (1999) ................................ 21

Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002), cert. denied,

537 U.S. 823, 123 S. Ct. 110, 154 L. Ed. 2d 33, 2002 U.S. LEXIS 6033

(U.S. Oct. 7, 2002) .......................................................................................... 9

Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990) (quoting United States v. U. S.

Gypsom Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948) ......... 33

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Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990) (quoting Anderson v. City

of Bessemer City, 470 U.S. 564, 573-74, 84 L. Ed. 2d 518, 105 S. Ct. 1504

(1985) ........................................................................................................... 33

Hamilton v. Brown, 4 Vet. App. 528, 544 (1993) ......................................... 30

Cf Hanson .v. Brown, 9 Vet. App. 29, 32 (1996) .......................................... 33

Hensley v. West, 212 F.3d 1255, 1263-64 (Fed. Cir. 2000) .......................... 17

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Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998) ............................ 29

Isenbart v. Brown, 7 Vet. App. 537, 541 (1995) ........................................... 32

Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007) .......... 18, 19, 21-

Kalman v. Prineipi, 18 Vet. App. 522, 524 (2004) ....................................... 34

Mayfield v. Nieholson, 444 F.3d 1328, 1335-36 (Fed.Cir. 2006) citing Sec.

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& Exeh. Comm'n v. Chenery Corp., 318 U.S. 80, 87, 63 S. Ct. 454, 87 L.

Ed. 626 (1943) ................................................................ . ........................ 16-17

Moody v. Prineipi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) ...................... 30, 34

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Muehlv. West, 13 Vet. App. 159, 161-62 (1999) ............................. 13, 15, 18

Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) ....................... 30

See. & Exch. Comm 'n v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575,

91 L. Ed. 1995 (1947) ................................................................................... 17

Suttman v. Brown, 5 Vet. App. 127, 136 (1993) ........................................... 21

Verdon v. Brown, 8 Vet. App. 529, 533 (1996) ...................................... 32, 35

Williams v. Peake, __ F.3d __., 2008 U.S. App. LEXIS 7052 (Fed.

Cir. April 3, 2008) ......................................................................................... 21

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STATUTES

Page(s)

38 U.S.C. § 5110(b)(1) .............................................................................. 5, 12

38 U.S.C. § 7104(d) ...................................................................................... 31

38 U.S.C. § 7292(d)(1) .................................................................................. 10

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REGULATIONS

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38 C.F.R. § 3.156(b) (2006) .................................................................... 13, 18

38 C.F.R. § 3.157(a), (b) .................................................................... 24-26, 27

38 C.F.R. § 3.160 .......................................................................................... 22

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38 C.F.R. § 3.160(b), (d) ............................................................................... 27

38 C.F.R. § 3.160(c), (d) ............................................................................... 26

38 C.F.R. § 3.160(f) ...................................................................................... 27

38 C.F.R. § 3.400(b)(ii)(B)(2) ................................................................... 5, 12

38 C.F.R. § 19.118 (1988) ............................................................................. 19

38 C.F.R. § 20.204 (2000) ....................................................................... 29, 31

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STATEMENT OF RELATED CASES

Counsel for the Appellant, Allison E. Rancher, furnishes the following

information in compliance with Fed. Cir. R. 47.5:

The title and docket number of any "related case," as defined by Fed. Cir.

R. 47.5, pending in this or any other court are:

None

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STATEMENT OF SUBJECT MATTER AND APPELLATE REVIEW

On May 22, 2001, the Board of Veterans' Appeals ("Board" or "BVA")

denied Ms. Rancher's claim to establish an effective date earlier than December

11, 1996 for her 100% rating for her service-connected schizophrenia. Ms.

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Rancher believes that she is entitled to an earlier effective date of February 2,

1984, which is the day after her discharge from active duty, for her granted 100%

rating for her service-connected schizophrenia.

On October 24, 2007, the U.S. Court of Appeals for Veterans Appeals

("Veterans Court") issued a Memorandum Decision which was partially

favorable to Ms. Rancher. The Court reversed the Board's decision finding that

the Board did not state adequate reasons or bases for its conclusion that the VA

Regional Office's (VARO) March 1993 decision was final. The Court denied

Ms. Rancher's claim for an earlier effective date based on her original January

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1985 claim because it held that this claim was finally denied in 1988. The Court

also concluded that the Board's finding that Ms. Rancher withdrew her TDIU

claim was not clearly erroneous. The Veterans Court entered judgment on

November 16, 2007. On January 11, 2008, Ms. Rancher appealed the Veterans

Court's decision to this Court. Her appeal was timely pursuant to 38 U.S.C. §

7292(a).

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STATEMENT OF THE ISSUES

Whether the Veterans Court improperly interpreted the Secretary's

Regulations and therefore concluded that her pending, unadjudicated

original January 31, 1985 claim was finally decided by four 1988

decisions.

Whether the Veterans Court misinterpreted the VA's duty to state

reasons or bases for its conclusion that the Appellant had withdrawn

her TDIU claim and misinterpreted the VA's duty to liberally construe

any document that purports to withdraw a claim.

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STATEMENT OF THE CASE

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On May 22, 2001, the Board of Veterans' Appeals ("Board" or

"BVA") issued its decision granting Ms. Rancher an effective date of

December 11, 1996 for the award of a 100% schedular rating for her service-

connected schizophrenia, but denying her an effective date prior to

December 1996 for this rating. (A. 100-112).

On June 6, 2001, within 120 days of her receipt, Ms. Rancher filed her

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motion for reconsideration with the Board, which was received by the Board

on June 6, 2001. On August 1, 2001, the Board issued a decision denying

Ms. Rancher's motion for reconsideration, but did not mail it to the veteran

until May 15, 2002.

On July 24, 2002, Ms. Rancher filed her Notice of Appeal with the

Veterans Court in order to obtain judicial review of the Board's May 2001

decision. (A. 18).

On September 13, 2006, the Veterans Court issued its decision which

affirmed the Board's May 22, 2001 decision. (A. 122-125).

In her October 4, 2006 motion for reconsideration/panel review, Ms.

Rancher again raised issues that the Court's decision had improperly

interpreted the controlling law (A. 126-140).

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On October 24, 2007, the Veterans Court issued a Memorandum

Decision partially granting and partially denying the Appellant's issues in

her appeal (A. 1-15).

On January 11, 2008, Ms. Rancher filed her Notice of Appeal with the

Veterans Court to appeal its decision to this Court (A. 141).

ii STATEMENT OF THE FACTS

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The veteran, Allison E. Rancher, (hereinafter, "Appellant" or

"veteran") served honorably in the U.S. Army from September 1980 until

February 1, 1984 (A. 30).

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In 1983 Ms. Rancher was diagnosed and treated for her schizophrenia

while in service (A. 2).

On January 29, 1985, she was admitted to the Tuscaloosa, Alabama

VA Medical Center (VAMC) where she was hospitalized and treated for her

schizophrenia until her March 20, 1985 discharge (A. 23-25). On her

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discharge, her physician stated, "She is unable to engage in stressful

employment at this time." (A. 25).

After her discharge from service, she attempted to work at the

Anniston Army Depot, but this job was terminated while she was

hospitalized in the Tuscaloosa VAMC (A. 33).

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On January 31, 1985, Ms. Rancher filed her original claim to establish

service connection for her schizophrenia (A. 26-29, 30). In August 1985,

the VA granted her original claim and found her schizophrenia to be service-

connected (A. 30-32). The VARO granted a temporary 100% rating from

January 29, 1985 until March 31, 1985, based on her hospitalization for

paranoid schizophrenia at the Tuscaloosa VAMC from January 29, 1985

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II until March 20, 1985 (A. 22-25). This August 1985 Rating decision also

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granted a 30% rating effective April 1, 1985 (A. 30-31). The August 1985

rating decision did not assign the correct effective date of February 2, 1984.

See 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(ii)(B)(2).

During the one-year appeal, as discussed below, she submitted new

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and material evidence which tolled her appeal period for her original claim.

In a February 24, 1986 VA Neuropsychiatric Examination report, Dr. G. G.

Ochoa stated that her "degree of incapacity" was "[m]oderately severe,

unable to pursue career in regular Army and in civilian job in Army Depot."

(A. 33). In July 1986, she submitted vocational evidence which stated that

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she was "too psychotic" to work (A. 37, 38)

On September 29, 1988, she was again admitted to the Tuscaloosa,

VAMC where she was hospitalized and treated for her schizophrenia until

her November 2, 1988 discharge (A. 56-60). On her discharge, her

physician stated, "The patient probably is unable to compete for gainful

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employment - however, she may benefit from continued efforts at

vocational rehabilitation." (A. 58).

In November 1988, the Social Security Administration (SSA)

concluded Ms. Rancher's schizophrenia had been totally disabling since

January 5, 1985 and granted Social Security Disability (SSD) benefits. In

fact, the SSA concluded that her schizophrenia met its Listing 12.03 and she

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was presumed to be disabled (A. 76-77, 78, 87, 88). In 1994, the SSA again

found she continued to meet Listing 12.03 for her schizophrenia (A. 68-74).

After extensive administrative proceedings, in August 1999, the

Secretary granted a 100% schedular rating, effective May 10, 1999, for her

schizophrenia (A. 80-84).

When Ms. Rancher's claim for an earlier effective date for her granted

100% schedular rating was appealed to the Board, the Board in the May

2001 decision on appeal determined that she was entitled to an effective date

of December 11, 1996 for the 100% schedular rating, but not earlier than

December 1996. The Board also concluded that she had withdrawn her

TDIU claim (A. 100-112).

SUMMARY OF THE ARGUMENT

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This appeal involves the Veterans Court's October 2007 decision

which affirmed the Board's May 2001 decision on a basis which was

different than that relied on by the Board. The Board had concluded that

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Ms. Rancher was not entitled to an effective date earlier than December 11,

1996, primarily because it concluded that the VA's March 1993 rating

decision was final and because her original January 1985 claim was

"previously allowed" and final. The Veterans Court concluded that the

Board had failed to state adequate reasons or bases for its conclusion that the

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March 1993 decision was final The Court also acknowledged that the

appeal period to her original claim was tolled by the submission of new and

material evidence within the appeal period. Nonetheless, the Veterans Court

reviewed the record extensively and concluded that Ms. Rancher's original

claim had been finally denied by one of four 1988 decisions which neither

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the Board nor the Secretary had raised or addressed. (A. 7-9, 104).

The Veterans Court misinterpreted the VA regulation on filing a

Notice of Disagreement (NOD) and the law on filing an NOD during the

tolled appealed period. As a result, the Court incorrectly concluded that Ms.

Rancher had not filed an NOD (A. 9).

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The Veterans Court misinterpreted the VA's regulations on original

claims and claims for increased ratings. As a result, the Court improperly

concluded that the VA's 1988 rating decisions to new claims for increased

ratings had denied Ms. Rancher's original January 1985 claim (A. 9).

The Veterans Court misinterpreted the VA's duty to state adequate

reasons or bases for the Board's conclusion that Ms. Rancher had withdrawn

her TDIU claim. The Court also misinterpreted the VA's duty to liberally

construe any document that purports to withdraw a claim. As a result, the

Court affirmed the Board's conclusory finding that Ms. Rancher had

withdrawn her TDIU claim (A. 13-14).

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ARGUMENT

I. STANDARD OF REVIEW

This Court has jurisdiction under 38 U.S.C. § 7292(a) over: (1) issues

of interpretation if the Veterans Court elaborated on the meaning of a statute

or regulation and the decision depended on that interpretation; (2) issues of

validity or interpretation raised before the Veterans Court but not explicitly

decided, if the decision would have been altered by adopting the position

that was urged; and (3) other "relevant" questions of law. Forshey v.

Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002), cert. denied, 537 U.S. 823,

123 S. Ct. 110, 154 L. Ed. 2d 33, 2002 U.S. LEXIS 6033 (U.S. Oct. 7,

2002).

The Appellant respectfully submits that this court has jurisdiction over

the issue of the correct interpretation of 38 C.F.R. § 3.156(b) because this

issue was raised before the Veterans Court, and explicitly decided, and the

court's decision would have been altered by adopting the position that was

urged by the Appellant.

The Appellant respectfully submits that this court has jurisdiction over

the issue of the interpretation of 38 C.F.R. §§ 3.157, 3.160(b), (c), (d), (f),

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19.118 (1988) and the correct interpretation of the duty to liberally construe

all pro se pleadings because these issues were raised before the Veterans

Court and that court's decision depended on its interpretation of the

regulations. Further, this court has jurisdiction to determine whether the

legal requirements of these regulations have been correctly interpreted in a

particular context where the relevant facts are not in dispute, that is, whether

there was an error of law. See Bailey v. Prineipi, 351 F.3d 1381, 1384 (Fed.

Cir. 2003), citingJaquay v. Principi, 304 F.3d 1276, 1289 (Fed. Cir. 2002)

(en bane).

This court may only set aside interpretations of regulations relied

upon in the decision of the Veterans Court that it finds be: "(A) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity; (C) in

excess of statutory jurisdiction, authority, or limitations, or in violation of a

statutory right; or (D) without observance of procedure required by law." 38

U.S.C. § 7292(d)(1).

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II. THE VETERANS COURT IMPROPERLY INTERPRETED THESECRETARY'S REGULATIONS AND THEREFORE

CONCLUDED THAT HER PENDING, UNADJUDICATED

ORIGINAL JANUARY 31, 1985 CLAIM WAS FINALLYDECIDED BY FOUR 1988 DECISIONS ISSUED IN RESPONSETO NEW CLAIMS FOR INCREASED RATINGS.

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The Board's May 2001 decision granted an earlier effective date of

December 11, 1996 for the 100% schedular rating for Ms. Rancher's

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service-connected schizophrenia (A. 102, 105 -112).

In February 1999, the Board had remanded Ms. Rancher's TDIU

claim to the VARO for further adjudication (A. 79). In August 1999, the

VARO granted a 100% schedular rating for her schizophrenia effective May

10, 1999 (A. 80-84). In October 1999, Ms. Rancher filed a VA Form 9 on

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which she disagreed with the effective date, arguing that she "ha[d] been

totally disabled since [she] filed [her] [TDIU] claim in July 1995." (A. 86).

On June 22, 2000, she filed a letter in which she stated the same (A. 89).

Ms. Rancher appealed and argued that she was entitled to an earlier effective

date of February 1984. In November 2000, Ms. Rancher's lay representative

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stated "she has been totally disabled since she was discharged from the

military service on February 1, 1984." (A. 92).

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The Appellant had argued before the Veterans Court that the effective

date granted by the Board for her 100% disability rating for her service-

connected schizophrenia should have been February 2, 1984, the day after

her discharge from active duty, because her original January 1985 claim for

service connection has never become a "finally adjudicated claim." (A. 115-

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120).

Ms. Rancher was discharged from active duty on February 1, 1984 (A.

30). She filed her original claim on January 31, 1985, within 1 year of her

discharge from service. In August 1985, the VA granted her original claim

and found her schizophrenia to be service-connected (A. 30-32). The

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VARO granted a temporary 100% rating from January 29, 1985 until March

31, 1985, based on her hospitalization for paranoid schizophrenia at the

Tuscaloosa, Alabama VA Medical Center (VAMC) from January 29, 1985

until March 20, 1985 (A. 23-25). This Rating decision also granted a 30%

disabling rating effective April 1, 1985 (A. 30-31). The August 1985 rating

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decision did not assign the correct effective date of February 2, 1984. See

38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(ii)(B)(2).

Ms. Rancher's schizophrenia was and has been totally disabling since

her February 1, 1984 discharge from active duty. The Veterans Court

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recognized Ms. Rancher's argument that none of the RO's decisions on her

original claim are final, because she either submitted new and material

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evidence, see 38 C.F.R. § 3.156(b) (2006); see also Muehl v. West, 13 Vet.

App. 159, 161-62 (1999), or filed an NOD within the one-year appeal period

of those decisions (A. 8).

The Veterans Court agreed that "[i]n Muehl v. West, th[at] Court held

that the RO's receipt of § 3.156(b) compliant evidence abates the finality of

a prior decision on a claim and tolls the time for filing an appeal until a new

decision has been issued. 13 Vet.App. at 161-62." (A. 9).

No The Veterans Court improperly affirmed the Board's decisionon a new basis not considered by the Board and engaged in

improper initial fact-finding on this new basis.

ii Before the Veterans Court, the Appellant had argued that "[t]he Board

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erred in not addressing the issue of whether the February 1, 1985 initial

claim was open." (A. 118-119). The Veterans Court stated "[t]he appellant,

citing § 3.156(b) and Muehl, supra, argues that the Board erred by finding

that her initial claim has already been subject to a final decision, namely, the

RO's July 1985 decision. According to the appellant, the RO received new

and material evidence-her July 1986 vocational rehabilitation report-within 1

year of that decision; therefore, the July 1985 RO decision never became

final." (A. 9).

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The Veterans Court agreed with the Appellant and recognized "for

purposes of this appeal, that the RO's July 1985 rating decision was

rendered non-final upon receipt of the appellant's July 1986 vocational

rehabilitation report." (A. 9). Instead of reversing the Board's decision and

remanding the matter to the Board for the Board to address this issue, the

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Court reviewed the record in detail and concluded that the Appellant's

original claim was finally denied by one of four VA decisions in April,

September, October, and December 1988. These four decisions were not

addressed by the Board. The Court stated, "As previously noted, the RO's

receipt of § 3.156(b) compliant evidence only tolls the time for filing an

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appeal until a new decision has been issued. The record indicates that the

RO issued new rating decisions on the appellant's initial claim in April,

September, October, and December 1988." (emphasis supplied) (A. 9). The

Court reviewed the evidence in the record meticulously and found

inaccurately:

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The appellant did not file an NOD within 1 year of any ofthose decisions ... Moreover, the appellant did not

submit any evidence within 1 year of the RO's December1988 decision, the final appealable decision in that series

and the only one that could be subject to tolling under §3.156(b). In short, the appellant's initial claim was

subject to an administrative decision that became finalfor purposes of direct appeal no later than December1989. (emphasis supplied).

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(A. 9).

Prior to the Veterans Court's decision, the Secretary had argued that

the VA had issued "two final agency decisions [ ] in October 1991 and

March 1993," which rendered the Appellant's original claim a finally

adjudicated claim (A. 121, 63-65, 66-67). The Secretary stated,

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"[a]ssuming arguendo that the issue of the severity of Appellant's service-

connected schizophrenia remained open following the July 1985 rating

decision, that issue became final following the unappealed October 1991

rating decision. In addition, following issuance of the unappealed March

1993 rating decision that raised Appellant's disability rating for service-

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connected schizophrenia to 50-percent, the issue again became final .... "

(Id.). The Secretary did not argue that any of these four 1988 decisions

adjudicated Ms. Rancher's original claim. The Secretary implicitly waived

any argument that the four 1988 VA decisions, which were referred to by the

Court, finally adjudicated the Appellant's original claim. The Secretary has

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expertise in analyzing VA claims.

In its May 2001 decision, the Board had concluded that the VARO's

March 1993 Rating decision was final because the Appellant "did not initiate

an appeal within one year." (A. 102, 104). The Veterans Court agreed with

the Appellant and concluded that "[t]he Board did not provide adequate

reasons or bases in support of its finding that the RO's March 1993 decision

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was fmal. R. at 5,306-07. [A. 104, 66-67] The evidence of record shows

that the RO received some of the appellant's SSA records in July 1993,

approximately four months after the March 1993 rating decision. R. at 309-

28 [A. 68-74]" (A. 10).

After reviewing the record in detail, the Veterans Court agreed that

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the original 1985 VA rating decision was tolled by the submission of new

and material evidence within the one-year appeal period. Nonetheless,

instead of reversing the Board's decision and remanding the claim to the

Board for a new decision, the Court concluded that Ms. Rancher's original

January 1985 claim was finally denied by one of the four 1988 VA

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decisions, which the Board had not considered. As discussed below, the

Court's findings were based on its misinterpretations of law that Ms.

Rancher's original claim was the same claim as a claim for an increased

rating and that herpro se pleadings did not meet the legal requirements of an

NOD.

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The Veterans Court's decision also violates the long-standing principle

of administrative law that a court reviewing an agency decision generally

may not sustain the agency's ruling on a ground different from that invoked

by the agency. See MayfieM v. Nicholson, 444 F.3d 1328, 1335-36 (Fed.Cir.

2006) citing Sec. & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 87, 63 S.

Ct. 454, 87 L. Ed. 626 (1943) ("The grounds upon which an administrative

16

order must be judged are those upon which the record discloses that its

I!I

action was based.") and See. & Exch. Comm'n v. Chenery Corp., 332 U.S.

194, 196, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947) ("A reviewing court, in

dealing with a determination or judgment which an administrative agency

alone is authorized to make, must judge the propriety of such action solely

I

II

I

by the grounds invoked by the agency. If those grounds are inadequate or

improper, the court is powerless to affirm the administrative action by

substituting what it considers to be a more adequate or proper basis.").

The Board's decision was based on an incorrect understanding of the

law, specifically that the new and material evidence submitted within the

I

III

one-year appeal periods after the July 1985 and March 1993 decisions did

not toll those decisions pursuant to 38 C.F.R. § 3.156(b) (2001) and Muehl v.

West, supra, and the result under the correct understanding of the law may

not be a foreordained conclusion. As such, the Veterans Court should have

remanded the case to the Board instead of engaging in initial fact-finding.

I

I

See Mayfield v. Nicholson, supra," see also Hensley v. West, 212 F.3d 1255,

1263-64 (Fed.Cir. 2000).

I

I

17

Bo The Veterans Court misinterpreted the Secretary's Regulationon Notices of Disagreements and therefore improperlyconcluded that Ms. Rancher had not filed a Notice of

Disagreement.

The Veterans Court's finding that Ms. Rancher's original claim was

i

III

finally decided by one of the four 1988 VA decision was based on the

Court's erroneous interpretations of law.

The "April 1988" rating decision (A. 9) was not an April 1988

decision; it was the April 15, 1986 cover letter for the April 10, 1986 rating

decision (A. 34, 35). This April 1986 rating decision (and the appeal period)

I!II

was also tolled by the submission of new and material evidence in May and

July 1986. See 38 C.F.R. § 3.156(b) (2001); Muehl v. West, supra; Jennings

v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007) ("we hold that a claim

becomes final and subject to a motion to reopen only after the period for

appeal has run. Any interim submissions before finality must be considered

III

by the VA as part of the original claim."). On July 17, 1986, the VA's

Counseling psychologist and Vocational Specialist filed a report stating that

Ms. Rancher "is much too psychotic for this program or state rehab to

benefit her. Should be declared infeasible if she reappl[ies]." (A. 37). On

I

II

the same date, the VA also stated "this veteran is too psychotic to be able to

train or maintain employment. If she reapplies she should be referred to the

18

VA panel." (emphasis supplied) (A. 38). On May 9, 1986, the VA

I

II

discontinued vocational rehabilitation for her (A. 36). This new and material

evidence abated the finality of the April 1986 decision on her original claim

and tolled the time for filing an appeal until a new decision had been issued.

See Jennings v. Mansfield, supra.

I

!!I

On April 18, and 19, 1988, Ms. Rancher filed her NODs to the April

1986 VA rating decision (A. 39, 40-49). She stated that she believed she

was entitled to a "higher percentage of at least 80% and higher" for her

disability. The Veterans Court's conclusion that she did not file an NOD to

this April 1986 rating decision was based on its misinterpretation of 38

I

!

!III

I

C.F.R. § 19.118 (1988). Whether a document is an NOD is a question of

law for the Court to determine de novo. Beyrle v. Brown, 9 Vet. App. 24, 27

(1996). 38 C.F.R. § 19.118 (1988) provides as follows:

A written communication from a claimant or the

representative expressing dissatisfaction or disagreementwith an adjudicative determination of an agency oforiginal jurisdiction (the Veterans Administrationregional office, medical center or clinic which notifiedthe claimant of the action taken) will constitute a noticeof disagreement. The notice of disagreement should bein terms which can be reasonably construed as a desirefor review of that determination. It need not be

expressed in any special wording. (38 U.S.C. 4005).

!II

In its fmding, the Veterans Court did not expressly state why these two

documents were not NODs (A. 9). The Court statement that Ms. Rancher

19

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IIII

"did not file an NOD within 1 year of any of those decisions" (ld.) was

based on its misinterpretation of law that the NOD was required to be filed

within one year after the VA decision. Of course, given the Veterans

Court's conclusion that the new and material evidence submitted during the

appeal period "toll[ed] the time for filing an appeal until a new decision has

I

I

!I

been issued" (Id.), Ms. Rancher's appeal period for filing her NOD was

tolled until the next VA decision on September 7, 1988 (A. 51-53). She

timely filed her NODs in April 1988. The VA has not provided her with a

Statement of the Case to pursue her appeal.

I

!II

C. The Veterans Court misinterpreted the Secretary's Regulationson Original Claims and Claims for Increased Ratings andtherefore improperly concluded that the VA's 1988 Ratingdecisions to new claims for increased ratings denied Ms.Rancher's original claim.

I

III

II

The Veterans Court's findings that the September, October, and

December 1988 VA decisions denied her original claim were based on its

implicit misinterpretations of law and resulting incorrect conclusion that Ms.

Rancher's original claim was the same claim as a new claim for an increased

rating. The Veterans Court stated, "the appellant's initial claim was subject

20

!!!I!

to an administrative decision that became final for purposes of direct appeal

no later than December 1989." (A. 3).

The Appellant concedes that a subsequent final adjudication of a

claim which is identical to a pending claim that had not been finally

adjudicated terminates the pending status of the earlier claim. Williams v.

!ii

!

Peake, ___ F.3d __, 2008 U.S. App. LEXIS 7052 (Fed.Cir. April 3, 2008).4

In this appeal, the 1988 VA decisions were made on new claims for

increased ratings and not on her pending original claim. At the time of these

1988 decision, Ms. Rancher's original claim was still pending and

unadjudicated. Since Ms. Rancher's original claim was pending and

unadjudicated in 1988, "any interim submissions before finality must be

considered by the VA as part of [her] original claim." Jennings v. Mansfield,

supra, at 1368.

The Veterans Court has held that original claims and claims for

increased ratings are different claims. See e.g., Fenderson v. West, 12 Vet.

App. 119, 125-126 (1999); Suttman v. Brown, 5 Vet. App. 127, 136 (1993)

(a claim for increase is a new claim "based upon facts different from the

prior final claim"). In a claim for a higher initial rating on an original claim,

the evidence for the entire period of time is required. Fenderson v. West,

supra, at 126. On the other hand, on a new claim for an increased rating,

only the current medical evidence is relevant, ld.

21

IIIII

The Secretary's regulation on claims at 38 C.F.R. § 3.160 provides as

follows:

§ 3.160 Status of claims.

The following definitions are applicable to claims forpension, compensation, and dependency and indemnitycompensation.

I

I

(a) Informal claim. See § 3.155.

(b) Original claim. An initial formal application on aform prescribed by the Secretary. (See §§ 3.151, 3.152).

IIIIIIII

IIII

(c) Pending claim. An application, formal or informal,which has not been finally adjudicated.

(d) Finally adjudicated claim. An application, formal orinformal, which has been allowed or disallowed by the

agency of original jurisdiction, the action having become

final by the expiration of l year after the date of notice ofan award or disallowance, or by denial on appellate

review, whichever is the earlier. (See §§ 20.1103 and

20.1104 of this chapter.)

(e) Reopened claim. Any application for a benefitreceived after final disallowance of an earlier claim, or

any application based on additional evidence or a request

for a personal hearing submitted more than 90 daysfollowing notification to the appellant of the certificationof an appeal and transfer of applicable records to theBoard of Veterans Appeals which was not considered bythe Board in its decision and was referred to the agencyof original jurisdiction for consideration as provided in §20.1304(b)(1) of this chapter.

(f) Claim for increase. Any application for an increase inrate of a benefit being paid under a current award, or for

resumption of payments previously discontinued.(emphasis supplied).

22

IIII

On January 31, 1985, Ms. Rancher filed her "original claim" on Form

21-526 (A. 26, 75). The VA's July 24, 1985 decision to Ms. Rancher's

original claim stated it was based on her "original claim." (A. 30). It also

stated that "a future examination [was] scheduled for 1986 to determine

residual disability at that point."

I

II

I

The September 1988 decision stated at the top of the decision

"Original Disability Rating? No". The decision stated that it was based on a

"Claim for increase." It referred to a last examination of 7/19/88. (A. 51).

The decision concluded that "Current examination findings do not show an

increase in severity of the veteran's schizophrenia." (emphasis supplied) (A.

I

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I

52). The July 19, 1988 VA examination on which this rating decision was

based stated that it was "a routine future Compensation and Pension

examination." (A. 50). This rating decision does not appear to have been

mailed to the Appellant. Assuming arguendo that it were mailed to the

Appellant, the examination and rating decision addressed only her current

II

I

examination findings. This decision does not address the issues of a higher

initial rating or earlier effective date in her pending original claim.

The October 1988 decision (dated November 3, 1988) states at the top

of the decision "Original Disability Rating? No" (A. 54). This decision is

II

I

based only on the Appellant's entitlement to temporary total benefits under

paragraph 29. The decision states the "J[urisdiction] [is] VA Form 10-

23

I

I

I

I

I

7132," which refers to the November 3, 1988 VA Form which documented

her hospitalization at the Tuscaloosa, Alabama VA Medical Center from

"9/29/88 [through her] release [on] 11-2-88." (A. 55, 56-60). This decision

does not address the issues of a higher initial rating or earlier effective date

in her pending original claim.

I

I

I!

The December 1988 decision states at the top of the decision

"Original Disability Rating? No" (A. 61). This decision is based only on

the Appellant's entitlement to temporary total benefits under paragraph 29

and the appropriate rating following the November 3, 1988 discharge from

the VA Medical Center. The decision states the "J[urisdiction] [is] Hospital

II

II

report." The decision refers to Ms. Rancher's hospitalization at the

Tuscaloosa, Alabama VA Medical Center from "9-29-88 [through her]

[release on] 11-2-88." (A. 61-62). This rating decision is based solely on

these hospital records. This rating decision considered this a claim for an

increased rating, presumably due to 38 C.F.R. § 3.157(a), (b). 38 C.F.R. §

3.157(a), (b) provide in relevant part as follows:

§ 3.157 Report of examination or hospitalization asclaim for increase or to reopen.

I

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I

(a) General. Effective date of pension or compensationbenefits, if otherwise in order, will be the date of receiptof a claim or the date when entitlement arose, whichever

is the later. A report of examination or hospitalizationwhich meets the requirements of this section will be

accepted as an informal claim for benefits under an

24

IIIIIIIIIIIIIIIIII

existing law or for benefits under a liberalizing law orDepartment of Veterans Affairs issue, if the report relatesto a disability which may establish entitlement.Acceptance of a report of examination or treatment as aclaim for increase or to reopen is subject to therequirements of § 3.114 with respect to action on

Department of Veterans Affairs initiative or at therequest of the claimant and the payment of retroactive

benefits from the date of the report or for a period of 1year prior to the date of receipt of the report.

(Authority: 38 U.S.C. 5110(a))

(b) Claim. Once a formal claim for pension orcompensation has been allowed or a formal claim forcompensation disallowed for the reason that the service-connected disability is not compensable in degree,receipt of one of the following will be accepted as aninformal claim for increased benefits or an informalclaim to reopen. In addition, receipt of one of thefollowing will be accepted as an informal claim in thecase of a retired member of a uniformed service whose

formal claim for pension or compensation has beendisallowed because of receipt 9f retirement pay. Theevidence listed will also be accepted as an informal claimfor pension previously denied for the reason the disabilitywas not permanently and totally disabling.

(1) Report of examination or hospitalization byDepartment of Veterans Affairs or uniformed services.The date of outpatient or hospital examination or date ofadmission to a VA or uniformed services hospital will be

accepted as the date of receipt of a claim. The date of auniformed service examination which is the basis for

granting severance pay to a former member of the ArmedForces on the temporary disability retired list will beaccepted as the date of receipt of claim. The date ofadmission to a non-VA hospital where a veteran wasmaintained at VA expense will be accepted as the date ofreceipt of a claim, if VA maintenance was previouslyauthorized; but if VA maintenance was authorized

25

IIIIII

subsequent to admission, the date VA received notice of

admission will be accepted. The provisions of thisparagraph apply only when such reports relate toexamination or treatment of a disability for whichservice-connection has previously been established orwhen a claim specifying the benefit sought is receivedwithin one year from the date of such examination,treatment or hospital admission. (emphasis supplied).

This regulation implying a new claim for an increased rating does not

apply until the veteran's formal original claim for compensation has been

"allowed." Ms. Rancher's original claim had not been finally adjudicated at

I

II

I

the time of her 1988 hospitalization. See 38 C.F.R. § 3.160(c), (d).

The December 1988 rating decision granted Ms. Rancher

"[e]ntitlement to Paragraph 29[ ] benefits [ ] for period of hospitalization."

The only other issue addressed in this rating decision was the grant that

"[the] [p]re[-]hospital rate is restored following discharge." (emphasis

I

II

supplied). This rating decision did not adjudicate her entitlement to a higher

initial rating for the entire period or the correct effective date on her pending

original claim.

The Veterans Court's finding that "the appellant's initial [original]

II

I

claim was subject to an administrative decision that became final for

purposes of direct appeal no later than December 1989" was based on its

implicit misinterpretations of an "original claim" and a "finally adjudicated

26

IIIIIIIII!IIIIIIIII

claim" under 38 C.F.R. § 3.160(b), (d) and a claim for an increased rating

under 38 C.F.R. §§ 3.157(a), (b); 3.160(f).

Due to its misinterpretations of these regulations defining these types

of claims, the Veterans Court improperly concluded that Ms. Rancher's

pending, unadjudicated original claim under 38 C.F.R. § 3.160(b) was

denied by a rating decision to a new claim for an increased rating under 38

C.F.R. § 3.157(a), (b) or under § 3.160(f).

It is respectfully submitted that if the Veterans Court had correctly

interpreted these regulations defining an "original claim" and a claim for

increased rating the court would not have reached the conclusion that the

December 1988 rating decision denied her original claim and she would

have prevailed in her appeal.

The Appellant moves the Court to conclude and hold that the Veterans

Court misinterpreted these regulations and as a result improperly denied her

appeal.

27

II

I

I

III. THE VETERANS COURT MISINTERPRETED THE VA'S DUTYTO STATE REASONS AND BASES FOR ITS CONCLUSIONTHAT THE APPELLANT HAD WITHDRAWN HER TDIU CLAIMAND MISINTERPRETED THE VA'S DUTY TO LIBERALLYCONSTRUE ANY DOCUMENT THAT PURPORTS TOWITHDRAW A CLAIM.

iI

II

Prior to the Board's May 2001 decision, Ms. Rancher had filed a June

2000 letter with the VA Regional Office which the Board concluded was her

withdrawal of her TDIU claim (A. 101 ). The Appellant respectfully

submits that her letter was ambiguous; it stated as follows:

II

II

III

I

I (Allison E. Rancher) am requesting that the letterdated June 22, 2000 be withdrawn and destroyed with theNotice of Disagreement for the 100% for paranoidschizophrenia to be rated Individual Unemployability. Inother words, I want to keep the rating 100% for paranoidschizophrenia and I decline to have the rating changed toIndividual Unemployability status. If I have caused anytrouble in this matter I am sorry.

Therefore, I want to remain 100% for paranoidschizophrenia and not be granted 100% IndividualUnemployability status at this time. (emphasis supplied).

(A. 90-91).

In November 2000 and in January 2001, Ms. Rancher's lay

representative filed two pleadings in which she claimed entitlement to TDIU

I

I

benefits (A. 92-94, 95-99).

28

II

II

Without any discussion of its reasons or bases, the Board in its May

2001 concluded, "It]hereafter, in June 2000, the veteran withdrew the TDIU

claim from appeal. See 38 C.F.R. § 20.204 (2000). Consequently, that

claim is no longer before the Board." (A. 101). The Board did not make a

finding of fact that Ms. Rancher's letter was ambiguous or unambiguous.

I

II

I

The Board did not state any reason or bases for its conclusion that that she

had withdrawn her TDIU claim. The Board did not refer to the November

2000 and January 2001 written pleadings raising the issue of entitlement to

TDIU. The Board did not discuss whether Ms. Rancher's mental disability

permitted her to have the mental capacity to make a knowing and voluntary

I

II

I

waiver of her TDIU claim. The Board did not discuss its duty to liberally

construe all pro se pleadings filed by Ms. Rancher and failed to address "the

Congressional mandate that the VA is to 'fully and sympathetically develop

the veteran's claim to its optimum before decision on its merits.'" Hodge v.

West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998).

II

II

Before the Veterans Court, the Appellant raised these issues. She

argued that "It]he veteran who is totally disabled due to her schizophrenia

did no____ttintend to withdraw her TDIU claim in her June 28, 2000 letter; she

was merely stating that she did not want the granted 100% schedular rating

changed." (A. 113). The Appellant also argued that the Board's May 2001

decision "did not refer to the representative's brief or state adequate reasons

29

IIII

and bases for its conclusion that she 'withdrew the TDIU claim from

appeal.' (R. 2) [A. 101]" (A. 113-114).

In her motion for reconsideration, the Appellant raised the same

issues. She also argued that "[a]t the time of the Board's May 2001

decision, the Board was required to adjudicate the disputed TDIU issue

IIII

because the representative had corrected the record and placed the claim in

issue. See Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)." In Hamilton,

the Veterans Court held that "a corollary of that rule is that where, as here,

the claimant expressly indicates an intent that adjudication of certain specific

claims not proceed at a certain point in time, neither the RO nor BVA has

II

II

authority to adjudicate those specific claims, absent a subsequent request or

authorization from the claimant or his or her representative."

In her motion for reconsideration, the Appellant also argued that in

adjudicating whether Ms. Rancher had validly withdrawn her TDIU claim,

the VA and Board were required, but failed, to read and construe all

III

communications from apro se veteran in a sympathetic manner and grant all

possible benefits. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir.

2004) (The Court stated any "ambiguity" in the veteran's earlier pleadings

"should be resolved in favor of the veteran."); Roberson v. Principi, 251

I

II

F.3d 1378, 1384 (Fed. Cir. 2001). The Board failed to read and construe

Ms. Rancher's pro se pleadings in a sympathetic manner and resolve any

30

I

I

I

I

ambiguity in her favor. The Board merely concluded, "Thereafter, in June

2000, the veteran withdrew the TDIU claim from appeal. See 38 C.F.R. §

20.204 (2000). Consequently, that claim is no longer before the Board." (A.

101). The Board ignored the representative's written correction of this issue

in January 2001 (A. 90). The Board improperly interpreted its duty to make

I

II

I

a decision based on all evidence and relevant law. See 38 U.S.C. § 7104(d).

The Veterans Court had accepted the Board's legally erroneous

interpretations.

In its October 2007 decision, the Veterans Court concluded solely that

the Board's finding that Ms. Rancher's TDIU claim was withdrawn is not

III

II

II

III

clearly erroneous. The Court stated in relevant part as follows:

The appellant argues that she did not withdraw herappeal from the RO's denial of her TDIU claim. See 38C.F.R. § 20.204 (2007). An appeal may be withdrawnwith respect to any or all issues, ld. at (a) .... VA has anobligation to liberally construe any document thatpurports to withdraw an appeal. See Kalman v. Principi,Vet.App. 522, 524 (2004). The Court reviews theBoard's determination that a document was sufficient to

withdraw an appeal under the "clearly erroneous"standard. Id. (citing 38 U.S.C. § 7261(a)(4)) (p. 13).

The Board's finding that the appellant's TDIUclaim had been withdrawn is not clearly erroneous. Asnoted in Part I, supra, the RO in June 2000, received aletter from the appellant (R. at 1107-08) [A. _ ],which included her name, claim number, and a statement

requesting that her NOD from the RO's decision on herTDIU claim "be withdrawn and destroyed." Id. Though

the appellant argues on appeal that she "did not intend to

31

lllIIl

withdraw her TDIU claim," (Br. at 5) [A. ] (emphasis inoriginal), the Court cannot conclude that the Board'scontrary finding was in error given the plain andunambiguous language used in her June 2000 letter. TheCourt, therefore, rejects the appellant's argument on thisissue. (emphasis supplied).

(A. 13-14).

When reviewing the question of a claimant's withdrawal of an appeal

to the Board, the Court must take into consideration "the nonadversarial

setting of the [VA] claims adjudication process," Isenbart v. Brown, 7 Vet.

IIII

App. 537, 541 (1995), during which VA is required to construe liberally all

submissions by a claimant, see EF v. Derwinski, 1 Vet. App. 324, 326

(1991); see also Verdon v. Brown, 8 Vet. App. 529, 533 (1996) (holding that

when it is ambiguous whether a claim is withdrawn in a written letter, "it is

not sufficient for the Board to conclude there was an abandonment without

IIII

providing an adequate statement of reasons or bases to support that

conclusion"); 38 C.F.R. § 20.202 (2004) (arguments within the Substantive

Appeal to Board will be construed "in a liberal manner for purposes of

determining whether they raise issues on appeal").

The Board's determination on whether Ms. Rancher's June 2000 letter

III!

to the RO constituted a withdrawal of her appeal is a finding of fact that the

Court reviews under the "clearly erroneous" standard of review set forth in

38 U.S.C. § 7261(a)(4) (Court shall "hold unlawful and set aside" clearly

32

I erroneous factual findings ). Cf. Hanson v. Brown, 9 Vet. App. 29, 32 (1996)

I

I

I

(applying "clearly erroneous" standard of review involving withdrawal of a

claim at the RO). "'A finding is 'clearly erroneous' when although there is

evidence to support it, the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been committed.'" Gilbert

I

I

II

v. Derwinski, 1 Vet. App. 49, 52 (1990) (quoting United States v. U.S.

Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948)). If the

Board's "'account of the evidence is plausible in light of the record viewed in

its entirety, the court of appeals may not reverse it.'" Gilbert, supra (quoting

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 84 L. Ed. 2d 518,

III

I

105 S. Ct. 1504 (1985)).

Although the Veterans Court referred to the clearly erroneous

standard (A. 8), its consideration of the "entire record" was limited to Ms.

Rancher's June 2000 letter (A. 13-14).

The Veterans Court recognized that the VA has an obligation to

I

II

I

liberally construe any document that purports to withdraw an appeal. The

Court misinterpreted the VA's duty. The Court failed to take into

consideration "the nonadversarial setting of the [VA] claims adjudication

process." The Court misinterpreted the VA duty to construe liberally all

submissions by a claimant because the Court ignored the November 2000

and January 2001 written submissions to the VA on the Appellant's TDIU

33

I

IIII

claim and the Court ignored that the Board had not considered these

submissions. The Court failed to consider Ms. Rancher's letter in its

context. See Kalman v. Principi, 18 Vet. App. 522, 524 (2004) (veteran's

letter "must be understood in its context").

The Veterans Court made an initial and improper finding of fact that

IIII

Ms. Rancher's letter was "unambiguous." The Board had not made any

finding on this issue. Although a court has the authority to find a statute or

document to be ambiguous or unambiguous, the Veterans Court does not

have the same legal authority to make the initial conclusion that a veteran's

pro se pleading is unambiguous. The Veterans Court is required to correctly

IIII

interpret and apply the VA's duty to liberally consider all of the veteran's

pro se pleadings in order to determine what claims she has filed. This duty

requires the VA to make the initial findings on these issues. "The question

is whether the BVA, as required by Roberson, sympathetically read [Ms.

Rancher's] filings." Moody v. Principg supra, at 1310. If the Veterans

III

Court had correctly interpreted the VA's duty to liberally construe any

document that purports to withdraw an appeal, then the Court would have

remanded the matter to the Board so that the VA could perform its duty in

the first instance, instead of making the initial finding of fact that Ms.

Rancher's letter was "unambiguous."

34

IIIIIIIIIIIIIIIIIII

The Veterans Court also misinterpreted the VA's duty to state reasons

or bases for the Board's conclusion that Ms. Rancher "withdrew the TDIU

claim from appeal" because her June 2000 letter was ambiguous. See

Verdon v. Brown, supra.

It is respectfully submitted that if the Veterans Court had correctly

interpreted the VA's duty to state adequate reasons or bases and its duty to

liberally construe all documents that purport to withdraw a claim, then the

court would have remanded her TDIU claim to the Board for the Board to

make the required initial findings, which were missing. As a result the

Veterans Court improperly denied her appeal.

35

IIIIIIIIIIIIIIIIIIi

CONCLUSION

The Appellant moves the Court to vacate the decision of the Veterans

Court and to remand Ms. Rancher's case to that court for readjudication

consistent with the discussion above.

DATED: April 23, 2008 Respectfully Submitted,

Jffhn F. Cameron

P.O. Box 240666

Montgomery, AL 36124-0666(334) 502-9500Attorney for AppellantAllison E. Rancher

36

IIIIiI

CERTIFICATE OF SERVICE

I hereby certify that I have mailed two copies of the foregoing Brief ofClaimant-Appellant, by U.S. mail, postage prepaid and properly addressed,on this the 23 ra day of April 2008, addressed to the following:

Scan B. McNamara, Esq.Department of Justice1100 L. Street, N.W., Rm. 12006

Washington, D.C. 20530

IIIIIII

I also hereby certify that I have mailed, by U.S. mail, certified mail,return receipt requested, postage prepaid, and properly addressed, an originaland twelve (12) copies of the foregoing Brief of Claimant-Appellant to theClerk, U.S. Court of Appeals for the Federal Circuit at the followingaddress, on this the 23 rdday of April 2008:

Clerk

United States Court of Appeals for Federal Circuit717 Madison Place, NWWashington, DC 20439

"John F. Cameron

Attorney for Claimant-Appellant

I

IIII

37

I

IIIIIII

IIII

IIIIiII

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume

limitation under Rule 32(a)(7)(B)(i). The Brief of Appellant Allison E.

Rancher contains 7,701 words.

Jo_tm-F.Cameron

Attorney for Claimant-Appellant

38