Smith v. McDonald, No. 14-7054 (Fed. Cir. 2015)
Annotate this CaseIn the “NOVA” decision, the Federal Circuit approved a plan requiring the Department of Veterans Affairs (VA) to identify and rectify harms caused by wrongful application of former 38 C.F.R. 3.103. The Plan required that the VA notify every claimant who received a final Board decision during the specified period and did not receive full relief. If a claimant had a case outside of the Board’s jurisdiction, but mandate had not issued and the appellate court’s judgment was not final, the VA was obligated to offer to submit a joint motion for remand. If the mandate had issued, the VA was required to offer to submit a joint motion to recall mandate and a joint motion for remand. Smith served in the Army, 1963-1965. In 2000, Smith filed an unsuccessful claim for compensation for post-traumatic stress disorder (PTSD). In 2008, Smith was awarded service connection for PTSD with a 100% disability rating and a 2006 effective date. Smith appealed to the Board, which, in 2011, denied entitlement to an earlier effective date. The Board did not apply the invalid Rule interpretation. The Veterans Court affirmed and, days before the NOVA decision, entered judgment. In 2013, the parties filed a joint motion to recall that judgment. The decision fit the search terms profile under the Plan and triggered the VA’s obligation to offer to submit a joint motion. Smith did not claim that VA failed to comply with 38 C.F.R. 3.103(c)(2) or any prejudice in the conduct of the Board hearing. The Federal Circuit affirmed denial of the motion, stating that neither its decisions nor the Plan preclude appropriate denial.
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