Noah v. McDonald, docket no. 15-0334 (June 10, 2016)
HELD: When VA sends “affirmatively misleading notice” to a claimant, that notice does not “satisfy the requirements of procedural due process guaranteed by the Fifth Amendment to the U.S. Constitution.”
SUMMARY: In December 1981, Mr. Noah filed a claim for service connection for PTSD. In January 1982, VA sent him a letter regarding additional information that was needed. The letter stated “Please reply within 30 days. If we have no reply within 60 days, we will assume that you have withdrawn your claim.” Mr. Noah did not respond to this request.
In December 2007, Mr. Noah filed another claim for service connection for PTSD. The RO granted the claim in 2009, effective the date of the 2007 claim. Mr. Noah appealed the effective date.
In an October 2011 statement, Mr. Noah explained that he had attempted to get medical evidence to support his 1981 claim, but he believed – based on VA’s letter – that if he did not submit the evidence within 60 days, VA would close his file. He was not able to get a medical appointment for approximately 90 days and could not afford to see a private psychiatrist – so he became discouraged and gave up. He stated that had he known that he actually had one year to submit the evidence, he would have waited for the appointment with the psychiatrist and would have been able to submit that evidence.
Mr. Noah later submitted a letter from a private psychiatrist stating that he was suffering from PTSD in 1981 and 1982. VA denied the earlier effective date and Mr. Noah appealed to the Board. At the Board, Mr. Noah’s counsel conceded that he had “abandoned” his 1981 claim, but argued that he “had a constitutional right not to be misled by VA’s letter.”
The Board acknowledged that in 1981, 38 C.F.R. § 3.158 provided that a claim will be considered abandoned if requested evidence is not submitted within one year after the date of the request. The Board acknowledged that VA’s letter was “misleading,” but concluded that “even though Mr. Noah might have believed he had no more than 60 days to submit medical evidence . . . , he remained subject to the 1-year abandonment provision in effect at the time.”
At the Court, Mr. Noah first argued that he was entitled to equitable tolling of the one-year period to submit evidence, and that equitable tolling might apply in situations such as his where a due process violation is alleged. The Court disagreed and held that “the one-year period in 38 U.S.C. § 3003(a) to submit evidence following VA’s notification of the evidence necessary to complete the application [for benefits] cannot be construed as a statute of limitations and, therefore, is not subject to equitable tolling.”
With respect to Mr. Noah’s due process argument, the Court held that VA’s act of providing the claimant with misleading notice violated his due process right to accurate notice and the “right to be heard,” which the Court described as his “right to have his claim for disability benefits adjudicated.” The Court held that VA’s 1982 notice letter “failed to satisfy the requirements of procedural due process guaranteed by the Fifth Amendment to the U.S. Constitution.”
However, the Court also found that in order to prevail in an argument for an earlier effective date based on the due process violation, the claimant must “demonstrate that he relied to his detriment on the misleading notice.” The Court acknowledged that Mr. Noah did not apply for benefits for PTSD again until 2007, but also noted his explanation for why he stopped pursuing benefits back in 1982. The Court remanded this appeal to the Board to determine whether Mr. Noah relied to his detriment on the misleading notice. If so, then his 1981 claim is “pending and unadjudicated,” and he may be entitled to an earlier effective date for an award of benefits.