          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                           NO. 15-0334

                                   BILL M. NOAH, APPELLANT,

                                                 V.

                                   ROBERT A. MCDONALD,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                         On Appeal from the Board of Veterans' Appeals


(Argued February 24, 2016                                                  Decided June 10, 2016)


       Jacques P. DePlois, of Coos Bay, Oregon, for the appellant.

       Sarah W. Fusina and Selket N. Cottle, with whom Leigh A. Bradley, General Counsel; and
Mary Ann Flynn, Assistant General Counsel, were on the brief, all of Washington, D.C., for the
appellee.

       Before HAGEL, Chief Judge, and LANCE and SCHOELEN, Judges.

       SCHOELEN, Judge, filed the opinion of the Court. LANCE, Judge, filed a concurring
opinion.

       SCHOELEN, Judge: The appellant, Bill M. Noah, appeals through counsel a November 28,
2014, Board of Veterans' Appeals (Board) decision that denied an effective date earlier than
December 19, 2007, for the award of disability compensation for post-traumatic stress disorder
(PTSD). Record of Proceedings (R.) at 2-11. This appeal is timely, and the Court has jurisdiction
to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was
referred to a panel of the Court, with oral argument, to address Mr. Noah's argument that he is
entitled to an earlier effective date based on the fact that, in January 1982, VA provided misleading
notice of the time required to submit evidence necessary to complete his December 1981 application
for disability compensation.1 For the reasons discussed below, the Court holds that the affirmatively
misleading notice failed to satisfy the requirements of procedural due process guaranteed by the Fifth
Amendment to the U.S. Constitution. Accordingly, the Court will vacate the Board's decision and
remand the matter for the Board to assess the weight and credibility of the evidence and make the
necessary factual finding whether Mr. Noah relied to his detriment on the misleading notice.


                                            I. BACKGROUND
        Mr. Noah served on active duty in the U.S. Army from November 1967 to December 1969,
including service in Vietnam. R. at 260-63. On December 3, 1981, Mr. Noah filed a formal
application for disability compensation for PTSD. R. at 738-45. Mr. Noah also submitted a
statement in support of his claim in which he described numerous stressful, allegedly in-service
incidents in Vietnam and asserted that he was experiencing nightmares and "emotional problems"
as a result of his service. R. at 742-45.
        On January 18, 1982, VA sent Mr. Noah a letter noting that additional service records had
been requested from the military, but that more information was needed from Mr. Noah. R. at 735.
The letter stated:
        Please tell us, as best you can recall, the dates and places of your assignments in
        Vietnam and your specific duty assignments at each location. In particular, identify
        periods of combat.

        As the name "post traumatic stress neurosis" suggests, traumatic events are
        recognized as triggering emotional symptoms some time after the actual events.
        Please identify for us as best you can the events or experiences in Vietnam which you
        believe are the "stressors" which are responsible for your present nervous condition.

        We must have postservice medical evidence to support your claim. Can you obtain
        medical records for us of your treatment since service? Or, if you wish, you may use
        the enclosed release of information forms to authorize our requests for those records.
        Please reply within 30 days. If we have no reply within 60 days, we will assume that
        you have with[]drawn your claim.
Id. (emphasis added).


        1
          Oral argument was held at the University of Toledo College of Law, in Toledo, Ohio. The Court thanks the
law school for its hospitality.

                                                        2
       It is undisputed that Mr. Noah did not respond to any of the requests for information in the
January 1982 letter. R. at 7. On December 19, 2007, more than 25 years later, Mr. Noah filed
another application for disability compensation for PTSD. R. at 641-50. In this application, Mr.
Noah circled "No" in response to the question: "Have you ever filed a claim with VA[?]" R. at 641.
Following evidentiary development, in April 2009, the VA regional office (RO) granted Mr. Noah's
claim for PTSD and assigned a 50% disability rating effective from December 19, 2007. R. at 907-
19. Mr. Noah disagreed with the assigned effective date and perfected an appeal to the Board. R. at
54-55, 64-83.
       In October 2011, Mr. Noah submitted a statement explaining that, in 1978, he had moved
with his wife and children from Oregon to Alaska, to "get away from people" and obtain employment
where he was able to work alone. R. at 44. Mr. Noah stated that after he continued to have problems
with nightmares and irritability, his wife's friend, a physician, recommended that for "delayed stress"
he seek treatment and benefits from VA in the "lower 48 states." Id. Mr. Noah moved with his
family to Crescent City, California, and, as noted above, filed a claim for disability compensation
in December 1981. Id. Mr. Noah explained that it had been his understanding from VA's January
1982 letter that "it was [his] responsibility to come up with medical evidence that [he] was suffering
from [PTSD]." Id. Mr. Noah stated that he believed "the [VA] letter made it very clear that [he] was
to respond to [VA] within 30 days and that if [he] did not come up with evidence within 60 days
[VA was] going to close [his] file." Id. Mr. Noah reported that, in 1982, he had contacted the Del
Norte Mental Health Clinic, but was unable to schedule an appointment for approximately 90 days.
Id. In addition, he reported that although he was uninsured at the time, he tried to see a private
psychiatrist. Id. Mr. Noah stated that the private psychologist's office indicated that it was unsure
when an appointment might be scheduled, but because there was no "crisis," an appointment would
not be scheduled for more than 30 days. Id. Mr. Noah further reported that he could not afford the
$150 consultation fee. R. at 46. When he asked the psychiatrist's office whether it knew of any other
available resources, he was told to try the Del Norte clinic. Id. Mr. Noah explained that he became
discouraged and returned to Alaska. R. at 44, 46. Mr. Noah also stated that, although he could have
provided to VA the requested information in 1982 with regard to the dates and locations of his
combat experience, he believed that "VA first was interested in medical evidence that [he] was


                                                  3
suffering from [PTSD], and [that he] was to submit [medical evidence] along with the combat
information in order for [VA] to continue with [his] claim." R. at 46. Finally, he asserted that had
he known he had 1 year to submit the medical evidence, he would have done so by waiting for an
appointment with the Del Norte clinic. Id.
         Also in October 2011, Mr. Noah's wife submitted a similar statement describing Mr. Noah's
efforts in 1982 to obtain medical evidence. R. at 48-50. Mr. Noah's wife stated that Mr. Noah
became discouraged when he was unable to obtain medical evidence within 30 days of receiving the
January 1982 letter and that he had decided to move back to Alaska without further pursuing his
claim. R. at 48-50.
         In November 2011, a private psychologist opined, based on her review of Mr. Noah's
December 1981 statement in support of his claim and Mr. Noah's and his wife's October 2011
statements, that Mr. Noah was suffering from PTSD in 1981 and 1982, and that he more likely than
not would have been diagnosed with PTSD had he seen a medical professional at that time. R. at
41-42.
         VA denied an earlier effective date in a November 2012 Supplemental Statement of the Case
(R. at 31-38) and, in September 2014, Mr. Noah testified at a Board hearing (R. at 836-52). Mr.
Noah reiterated that when his efforts to obtain medical evidence within 60 days after the 1982 letter
failed, he did not submit his combat evidence because he thought that he was required to submit
both. R. at 841-44. Mr. Noah stated that his inability to obtain the medical evidence left him
extremely discouraged and prompted him to return to Alaska. R. at 844-47. Mr. Noah's counsel
conceded that Mr. Noah had "abandoned" his 1981 claim, but argued that Mr. Noah had a
constitutional right not to be misled by VA's letter.2 R. at 849-50.
         In the November 2014 decision on appeal, the Board acknowledged that, in 1981, 38 C.F.R.
§ 3.158, provided that a claim will be considered abandoned "[w]hen evidence requested in
connection with an original claim, . . . is not furnished within 1 year after the date of request," and
therefore the Board found VA's January 1982 letter, which informed Mr. Noah that he had to respond



         2
           The Court notes that this appears to be the first time in the record that Mr. Noah raises a constitutional due
process issue. It was only at the Court's invitation that he raised this issue on appeal in his supplemental memorandum
of law and at oral argument.

                                                           4
within 30 to 60 days, "misleading." R. at 7-8 (emphasis added). Nevertheless, the Board stated that
"faulty advice, even if provided by a VA employee, cannot serve as the basis for paying benefits not
otherwise authorized by law." Id. (citing McTighe v. Brown, 7 Vet.App. 29, 30 (1994)). The Board
further noted that "'everyone dealing with the Government is charged with knowledge of federal
statutes and lawfully promulgated regulations,'" such that VA's regulation governing abandonment
of claims remained binding on Mr. Noah, regardless of whether he had actual knowledge of its
content. Id. (quoting Morris v. Derwinski, 1 Vet.App. 260, 265 (1991)). As a result, the Board
found that, even though Mr. Noah might have believed he had no more than 60 days to submit
medical evidence and this discouraged and stopped him from trying to submit evidence, he remained
subject to the 1-year abandonment provision in effect at the time. Id. The Board concluded that Mr.
Noah had abandoned his 1981 claim; therefore, December 19, 2007, the date VA received Mr.
Noah's new claim for PTSD, was the earliest effective date permitted by law. R. at 8-9. This appeal
followed.


                               II. THE PARTIES' ARGUMENTS
        Mr. Noah does not argue that VA is equitably estopped from denying an earlier effective date
as a result of the misleading January 1982 letter. Appellant's Brief (Br.) at 10. Instead, he argues
that the Board erred when it failed to consider whether he was entitled to equitable tolling of the
1-year period to submit evidence following notice of an incomplete application. Id. at 10. Relying
on Smith v. Derwinski, 2 Vet.App. 429, 433-34 (1992), which applied equitable tolling to 38 U.S.C.
§ 5110(b)(3)(A), Mr. Noah maintains that had he been informed of the correct time to submit
evidence, there is every reason to conclude that he would have submitted the required evidence well
within the 1-year period. Appellant's Br. at 11-12. Accordingly, he asks that the Court apply the
doctrine of equitable tolling and reverse the Board's decision or, in the alternative, remand the matter
for the Board to discuss the doctrine in the first instance. Id. at 12.
        The Secretary argues that the doctrine of equitable tolling is not applicable because there is
no filing deadline to toll. Secretary's Br. at 7-8. Although the 1982 letter misrepresented the length
of time before Mr. Noah's claim might be considered abandoned, the Secretary asserts that VA's
misrepresentation does not override the effective date requirements mandated by 38 U.S.C. § 5110(a)


                                                   5
and 38 C.F.R. § 3.400(b)(2)(i) and the prohibition imposed by Congress in 38 U.S.C. § 3003(a)
(1981),3 which provides that no benefits may be paid based on an application that has been
abandoned. Id. at 10.
         On October 30, 2015, the Court ordered the parties to submit memoranda of law addressing
(1) how the doctrine of equitable tolling applies, if at all, to the 1-year period to submit evidence set
forth in 38 U.S.C. § 3003(a) (1981) and 38 C.F.R. § 3.158 (1981);4 (2) whether the 1-year period to
submit evidence following VA's request for information is suspended where VA provides misleading
notice regarding the time to submit evidence and the veteran detrimentally relies on that notice; and
(3) if the 1-year period is suspended, whether Mr. Noah's 1981 claim for PTSD remained pending
until December 2007 when he filed another application for disability compensation for PTSD.
         In his supplemental memorandum of law, Mr. Noah concedes that there is no requirement
that the Secretary inform a claimant of the 1-year period to submit evidence, but argues that the facts
of this case are distinguishable from the facts in Morris, 1 Vet.App. at 265, where the Court charged
the appellant with knowledge of the law. Supplemental Memorandum at 2-3. He maintains that
         the issue presented in this case, not presented in Morris, is a due process argument
         based on the fact that the Secretary did not "properly discharge his duty" [under
         section 3003(a) to inform him of the evidence necessary to complete his application]
         by affirmatively misleading [him] regarding the time limit in which to submit
         evidence.
Id. at 2-3. Mr. Noah asserts that the Court implied in Edwards v. Peake, 22 Vet.App. 29 (2008), that
equitable tolling might apply in some situations where a due process violation is alleged, and that
the facts of this case demonstrate that he detrimentally relied on constitutionally deficient notice.
Id. at 3-5. As a result, Mr. Noah contends that his claim remained pending since 1981. Id. at 6-7.
         The Secretary argues that equitable tolling is not applicable because (1) the 1-year period to
submit evidence is not a statute of limitations; (2) this Court and U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) have both recognized that equitable tolling does not apply to


         3
             Currently codified, as revised, at 38 U.S.C. § 5103(a).
         4
           Section 3.158 was initially promulgated on December 1, 1962, and has remained substantially the same despite
revisions on December 10, 1963; November 9, 1987; September 30, 1997; and July 31, 2002. See 27 Fed. Reg. 11,887
(1962); 28 Fed. Reg. 13,362 (1963); 52 Fed. Reg. 43,063 (1987); 62 Fed. Reg. 51,278 (1997); and 67 Fed. Reg. 49,586
(2002).

                                                             6
effective date statutes; and (3) 38 U.S.C. § 3003 explicitly prohibits payment on an incomplete
application if the evidence is not received within 1 year from the date of notification. Secretary's
Supplemental Memorandum at 2-3. The Secretary asserts that the facts of this case are analogous
to the facts in OPM v. Richmond, 496 U.S. 414 (1990), which held that equitable estoppel cannot
compel payment of monetary benefits not authorized by law. Id. at 9-10. Assuming that the
misleading notice and detrimental reliance on the notice might warrant suspending the 1-year period
to submit evidence, the Secretary argues that Mr. Noah fails to demonstrate that he diligently
pursued his legal remedies or that he relied to his detriment on the 1982 letter. Id. at 13-17.


                                          III. ANALYSIS
                                                A. Law
       In 1981, 38 U.S.C. § 3003(a) imposed a duty on the Secretary, upon receipt of an incomplete
application for benefits, to notify the claimant of the evidence necessary to complete the application.
38 U.S.C. § 3003(a) ("If a claimant's application for benefits under the laws administered by the
Veterans' Administration is incomplete, the Administrator shall notify the claimant of the evidence
necessary to complete the application."). Section 3003(a) further provided that "[i]f such evidence
is not received within one year from the date of such notification, no benefits may be paid or
furnished by reason of such application." Id.
       Pursuant to his authority under 38 U.S.C. § 501(a), the Secretary promulgated 38 C.F.R.
§ 3.158, which provided that
       where evidence requested in connection with an original claim, . . . is not furnished
       within 1 year after the date of request, the claim will be considered abandoned. After
       the expiration of 1 year, further action will not be taken unless a new claim is
       received. Should the right to benefits be finally established, . . . compensation . . .
       based on such evidence shall commence not earlier than the date of filing the new
       claim.
38 C.F.R. § 3.158.
                                             B. Morris
       In one of this Court's earliest cases, the Court found § 3.158 "entirely consistent with the
command of 38 U.S.C. § 3003(a) regarding the disposition of incomplete claims." Morris,
1 Vet.App. at 264. Moreover, the Court in Morris rejected the appellant's due process argument that

                                                  7
he was never notified that claims are subject to abandonment pursuant to § 3.158, because the record
supported a contrary view and the abandonment provisions "cannot be set aside or waived on
grounds of alleged ignorance of regulatory requirements." Id. at 265; see also Fed. Crop Ins. Corp.
v. Merrill, 332 U.S. 380, 384-85 (1947) (holding that everyone dealing with the Government is
charged with knowledge of Federal statutes and lawfully promulgated agency regulations).
        The facts in this case are distinguishable from the facts in Morris because, even assuming
VA had no duty to notify Mr. Noah of the 1-year period to submit evidence, the Board conceded that
VA provided misleading notice to Mr. Noah. Under these circumstances, the Court agrees with Mr.
Noah that Morris does not control the disposition of this case. Thus, it is incumbent on the Court
to determine whether the 1-year period may be equitably tolled and whether VA's misleading notice
violated Mr. Noah's Fifth Amendment due process rights.
                                         C. Equitable Tolling
        As noted above, Mr. Noah asks the Court to use its equitable tolling authority to extend the
1-year period to submit evidence following VA's January 1982 letter, thereby affording an earlier
effective date based on his December 1981 claim. Although equitable tolling may be applied against
the Government in certain cases, such as "where the claimant has actively pursued his judicial
remedies by filing a defective pleading during the statutory period, or where the complainant has
been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass,"
Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990), equitable tolling is generally applied to
toll a statute of limitations in order to bring a claim that would otherwise be time barred. See, e.g.,
Bove v. Shinseki, 25 Vet.App. 136, 140 (2011) (holding that the 120-day period in 38 U.S.C.
§ 7266(a) is subject to equitable tolling). But see Lampf, Pleva, Lipkind, Prupis & Petigrow v.
Gilbertson, 501 U.S. 350 (1991) (holding that equitable tolling did not apply to claim brought under
section 10(b) of the Securities Exchange Act of 1934 where purpose of limitation was clearly to
serve as an absolute cutoff of liability).




                                                  8
         For support of his argument that the 1-year period may be tolled, Mr. Noah relies on Smith,
2 Vet.App. at 433-34, which applied principles of equitable tolling to section 5110(b)(3)5 based on
VA's failure to comply with section 7722(d). There, the Court found that if VA had abided by its
duty and timely informed Mr. Smith of the "specific request requirement for retroactive benefits" in
section 5110(b)(3), "there is every reason to conclude . . . that he would have made the specific
request well within the one-year time period." Id. at 434-35. As a result, the Court held that the
1-year filing requirement was equitably tolled. Id. at 435.
         Mr. Noah's reliance on Smith is misplaced for at least two reasons. First, the Court's
application of equitable tolling to section 5110 might be regarded as dictum in light of the fact that
the Court ultimately affirmed the Board's decision because Mr. Smith failed to meet the statutory
requirement in section 5110(b)(3)(B). See Smith, 2 Vet.App. at 435 (affirming the Board's factual
determination that the appellant was not precluded from filing a claim for pension benefits for at
least 30 days from the time he became permanently and totally disabled). Second, to the extent that
Smith might be considered binding precedent, the Federal Circuit's decisions in Andrews v. Principi
and Rodriguez v. West effectively overruled Smith. See Andrews v. Principi, 351 F.3d 1134 (Fed.
Cir. 2003); Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999).
         In Andrews and Rodriguez, the Federal Circuit addressed whether section 5110, the statute
that governs the effective date of awards of VA benefits, may be equitably tolled. See Andrews,
351 F.3d at 1137-38; Rodriguez, 189 F.3d at 1354-55. The Federal Circuit rejected Mrs. Rodriguez's
argument for an earlier effective date for the award of pension benefits based on the Secretary's
purported failure to provide her with a formal claim form and assist her in the presentation of her
claim in accordance with 38 U.S.C. §§ 5102 and 7722(d). Rodriguez, 189 F.3d at 1354-55. The
Federal Circuit stated that nothing in those provisions "indicates, or even suggests, that the
Secretary's failure to provide assistance to a claimant justifies ignoring the unequivocal command




         5
            The current version of section 5110(b)(3) now appears in section 5110(b)(4), but is otherwise identical to the
statute in effect in 1992. Section 5110(b)(4) provides that "[t]he effective date of an award of disability pension to a
veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran
became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date,
whichever is to the advantage of the veteran." 38 U.S.C. § 5110(b)(4).

                                                            9
in 38 U.S.C. § 5110(a) that the effective date of benefits cannot be earlier than the filing of an
application therefor." Id.
         Subsequently, in Andrews, the Federal Circuit unequivocally stated: "[Section] 5110 does
not contain a statute of limitations, but merely indicates when benefits may begin and provides for
an earlier date under certain limited circumstances. . . . Section 5110 addresses the question of when
benefits begin to accrue, not whether a veteran is entitled to benefits at all." 351 F.3d at 1138
(citation omitted). Hence, Andrews concluded that "[p]assage of the one-year period in [section]
5110(b)(1)[6] for filing a claim for disability compensation therefore does not foreclose payment for
the veteran and thus cannot be construed as a statute of limitations." Id.; accord McCay v. Brown,
106 F.3d 1577, 1579 (Fed. Cir. 1997) (refusing to apply equitable tolling to 38 U.S.C. § 5110(g),
even in the face of alleged misrepresentations by VA).
         Relying on Andrews and Rodriguez, the Secretary argues that equitable tolling cannot be
applied to section 3003(a) and § 3.158 because neither the statute nor the regulation is a bar to VA
benefits and, therefore, neither contains a statute of limitations that may be tolled. Rather, as the
Secretary notes, the statute and regulation govern the submission of evidence following notification
that an application is incomplete and the date on which benefits may be paid. Specifically, section
3003(a) prohibits VA from making payment on an incomplete application if a claimant fails to
submit additional evidence within 1 year from the date of notification of the evidence necessary to
complete the application, and § 3.158(a) provides that after a claim has been abandoned, "[s]hould
the right to benefits finally be established, . . . compensation . . . based on such evidence shall
commence not earlier than the date of filing the new claim." 38 C.F.R. § 3.158(a) (emphasis added).
         Because section 3003(a) and § 3.158(a) directly affect the date that payment of VA benefits
may begin, the Court agrees with the Secretary that they operate similar to effective-date provisions
for the award of VA benefits, which the Federal Circuit clearly held are not subject to equitable
tolling. Previously, the Court has relied on Andrews and Rodriguez to hold in other contexts that the
period for submitting evidence is not subject to equitable tolling. See Edwards v. Peake,



         6
           Section 5110(b)(1) provides that "[t]he 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." 38 U.S.C. § 5110(b)(1).

                                                            10
22 Vet.App. 29, 36 (2008), aff'd sub nom. Edwards v. Shinseki, 582 F.3d 1351 (Fed. Cir. 2009). In
Edwards, the Court held that the period for submitting additional evidence in connection with a
claim that has been denied, see 38 C.F.R. § 3.156(b), is not a statute of limitations that may be
equitably tolled. 22 Vet.App. at 36. The Court concluded that "[Mr. Edwards's] equitable tolling
argument must fail because he is 'ask[ing] this [C]ourt to waive the express statutory requirements
for an earlier effective date for [service connection], which we cannot do.'" Id. at 36-37 (quoting
Andrews, 351 F.3d at 1138).
        Section 3003(a) expressly prohibits VA from paying or furnishing benefits on an application
if evidence necessary to complete the application is not received within 1 year from the date of
notification. Accord 38 C.F.R. § 3.158 (providing that "[a]fter the expiration of 1 year, further action
will not be taken unless a new claim is received [and] [s]hould the right to benefits be finally
established, . . . compensation . . . based on such evidence shall commence not earlier than the date
of filing the new claim"). Like section 5110 and § 3.156(b), section 3003(a) and § 3.158 merely
indicate when benefits may begin, not whether a veteran is entitled to benefits at all. Accordingly,
the Court holds that the 1-year period provided in 38 U.S.C. § 3003(a) to submit evidence following
VA's notification of the evidence necessary to complete the application cannot be construed as a
statute of limitations and, therefore, is not subject to equitable tolling. Notwithstanding VA's
misleading notice, the Court lacks authority to equitably toll the deadline to submit evidence. See
Andrews, Rodriguez and Edwards, all supra.
                                     D. Procedural Due Process
        The Fifth Amendment to the U.S. Constitution provides that "No person shall . . . be deprived
of life, liberty, or property, without due process of law." U.S. CONST. amend. V. "[T]he Due
Process Clause provides that certain substantive rights – life, liberty, and property – cannot be
deprived except pursuant to constitutionally adequate procedures." Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 541 (1985). An essential principle of procedural due process is that
deprivation of a protected interest must "be preceded by notice and opportunity for hearing
appropriate to the nature of the case." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,
313 (1950). The Court reviews questions of constitutional interpretation de novo. See Buzinski v.
Brown, 6 Vet.App. 360, 365 (1994) ("VA resolution of questions of constitutional interpretation are


                                                  11
questions of law, to which no deference is accorded and accordingly this Court's review is de
novo.").
        Notice is constitutionally sufficient if it is "reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an opportunity to present
their objections." Mullane, 339 U.S. at 314; see Goldberg v. Kelly, 397 U.S. 254, 267 (1970). If
"these conditions are reasonably met, the constitutional requirements are satisfied." Mullane,
339 U.S. at 314-15. However, notice is of little value "unless one is informed that the matter is
pending and can choose for himself whether to appear or default, acquiesce or contest." Id. at 314;
see also Dealy v. Heckler, 616 F. Supp. 880, 886 (W.D. Mo. 1984) ("Adequate notice requires
accuracy in the description of legal rights and options available to parties.").
        In Cushman v. Shinseki, the Federal Circuit held that a veteran's entitlement to disability
benefits is a property interest protected by the Due Process Clause. 576 F.3d 1290, 1298 (Fed. Cir.
2009). The amount of process that is constitutionally due depends on the situation and generally
requires consideration of three distinct factors: "First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural safeguards; and finally,
the Government's interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail." Mathews v. Eldridge,
424 U.S. 319, 335 (1976); see also Goldberg, 397 U.S. at 263-71.
        In applying this test, the Court is guided by the general principle that "due process" is a
flexible concept, such that the process necessary to ensure fundamental fairness does not require that
"the procedures used to guard against an erroneous deprivation . . . be so comprehensive as to
preclude any possibility of error." Mackey v. Montrym, 443 U.S. 1, 13 (1979); see also Morrissey
v. Brewer, 408 U.S. 471, 481 (1972) ("[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.").
                                          1. Mathews Factors
                                       i. Private Interest Affected
        The first of the Mathews factors – the private interest affected by official action – favors Mr.
Noah. Here, the official action is the provision of misleading notice to a disability benefits claimant


                                                    12
of the time to submit evidence necessary to complete an application. The private interest at stake
is significant and obvious – "[a] [v]eteran's disability benefits are nondiscretionary, statutorily
mandated benefits." Cushman, 576 F.3d at 1298; see Ribaudo v. Nicholson, 21 Vet.App. 137, 163
(2007) (en banc) (Schoelen, J., dissenting) (stating that the VA motto reflects a core value of our
Nation, which is "'[t]o care for him who shall have bourne the battle for his widow, and his orphan'"
(quoting President Abraham Lincoln)). Indeed, when Congress passed the Veterans' Judicial Review
Act and the Veterans' Benefits Improvement Act of 1988, for the first time establishing judicial
review for veterans' claims, "Congress emphasized the historically non-adversarial system of
awarding benefits to veterans and discussed its intent to maintain the system's unique character."
See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (referring to H.R. Rep. No. 100-963, at
13 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5794-95). "The veterans benefits scheme is thus
'imbued with special beneficence from a grateful sovereign'" Sneed v. Shinseki, 737 F.3d 719, 728
(Fed. Cir. 2013) (quoting Bailey v. West, 160 F.3d 1360, 1370 (Fed. Cir. 1998) (Michel, J.,
concurring)), and in this context, "the importance of systemic fairness and the appearance of fairness
carries great weight," Hodge, 155 F.3d at 1363. See also Gilbert v. Derwinski, 1 Vet.App. 49, 54
(1991) ("It is in recognition of our debt to our veterans that society has through legislation taken
upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is
an 'approximate balance of positive and negative evidence.' By tradition and by statute, the benefit
of the doubt belongs to the veteran.").
         This is a "substantial" interest, which weighs heavily in favor of ensuring that an eligible
veteran for VA disability benefits receives accurate predecision notice of the procedures and
requirements to pursue his or her claim. Postdecision notice is not enough. Thus, even here, where
Congress did not, in 38 U.S.C. § 3003(a), impose a duty on the Secretary to inform a claimant that
he or she has 1 year to submit evidence necessary complete an application for benefits, the special
beneficence afforded to our nation's veterans cannot tolerate notice that misleads the potential
recipient of benefits due as a result of his or her service.7



         7
           In fact, in 2003, the Federal Circuit found invalid 38 C.F.R. § 3.159(b) (2001), which incorrectly stated the
time in which a claimant must submit evidence in support of his or her claim. See Paralyzed Veterans of Am. (PVA) v.
Sec'y of Veterans Affairs, 345 F.3d 1334, 1346 (Fed. Cir. 2003) (stating that the erroneous notice is misleading and

                                                          13
                                      ii. Risk of Erroneous Deprivation
         The second Mathews factor also favors Mr. Noah because the risk of erroneous deprivation
of a claimant's entitlement to VA disability benefits was great as a result of VA's practices. The right
to be heard – in this case, Mr. Noah's right to have his claim for disability benefits adjudicated – was
significantly impeded by misleading notice regarding the time to submit necessary evidence.
Consequently, the facts of this case are clearly distinguishable from the facts in Morris, where the
Court in part rejected the appellant's due process argument that he was never notified that claims are
subject to abandonment because "everyone dealing with the Government is charged with knowledge
of federal statutes and lawfully promulgated agency regulations," 1 Vet.App. at 265 (citing Fed.
Crop Ins. Corp., 332 U.S. at 384-85). This is not a matter of whether a claimant is properly charged
with knowledge of the relevant law. Rather, VA provided Mr. Noah inaccurate and misleading
notice that gave him significantly less time than the law allowed to respond to VA's request for
information.
         Previously, the Federal Circuit has addressed the potential prejudice resulting from
misleading notice regarding the time to submit evidence. In Disabled American Veterans v.
Secretary of Veterans Affairs, the Federal Circuit found the Secretary's regulation, 38 C.F.R.
§ 19.9(a)(2)(ii) (2002), which gave an appellant "not less than 30 days" to respond to notice provided
by the Board under 38 U.S.C. § 5103(a), contrary to 38 U.S.C. § 5103(b) (eff. June 5, 2001, to Dec.
15, 2003), which gave a claimant 1 year to submit evidence necessary to substantiate the claim.
327 F.3d 1339, 1348-49 (Fed. Cir. 2003). The Federal Circuit stated that the misleading notice is
"especially prejudicial to veterans during the non-adversarial stages of disputes over benefits, when
veterans rely on the strongly and uniquely pro-claimant character of the veterans' benefits system and
pursue their statutory entitlements without the assistance of legal counsel." Id. at 1349. Similarly,
in PVA the Federal Circuit noted that erroneous notice of the time limit to act in furtherance of a
claim "ensures confusion and inefficiency, and is potentially prejudicial to the claimant." 345 F.3d
at 1346; see also Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990) (holding that notice from
the Social Security Administration that incorrectly informed Mr. Gonzalez that he had "the right to


may lead unsuspecting claimants to believe that they must provide the requested information or evidence within 30 days
even though the statute unequivocally provides 1 year to submit evidence).

                                                         14
file another application at any time" was "sufficiently misleading" that it violated his due process
rights); see also Butland v. Bowen, 673 F. Supp. 638, 641 (D. Mass. 1987) (holding that notice that
specifically informed Ms. Butland that she might file another claim for Social Security disability
benefits "at any time" – when, in fact, she had only 4 years in which to do so – was misleading to the
extent that it "clearly violates the Constitutional guarantee of due process"); Dealy, 616 F. Supp. at
887 (finding that notice that "serves to mislead and deceive the disability applicant and denies the
applicant the right to make an intelligent and informed decision" was "constitutionally deficient").
                                     iii. Governmental Interest
       The final Mathews factor – "the Government's interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute procedural requirement would
entail," 424 U.S. at 335 – also supports Mr. Noah. It is difficult to conceive of any significant
financial or administrative burden associated with the requirement that VA provide a claimant with
accurate information. See generally Gonzalez, 914 F.2d at 1203 (stating that "[r]equiring notices to
accurately state how a claimant might appeal an initial decision does not impose a significant
financial or administrative burden on the Secretary" (emphasis added)). Although section 3003(a)
did not require VA to provide Mr. Noah with notice that his claim for disability benefits may be
deemed abandoned if he did not respond within 1 year from the date of notification of the evidence
necessary to complete his application, once VA assumed the responsibility to inform Mr. Noah of
a timeframe to respond, it had an affirmative obligation not to mislead him. As the Federal Circuit
noted in Barrett v. Nicholson, "[t]he government's interest in veterans cases is not that it shall win,
but rather that justice shall be done, that all veterans so entitled receive the benefits due to them."
466 F.3d 1038, 1044 (Fed. Cir. 2006). Moreover, once VA assumed the responsibility of providing
notice of the time to submit evidence, it is unclear to the Court how any requirement that VA provide
accurate information imposes a fiscal or administrative burden on VA.
       Upon consideration of the substantial private interest at stake, the risk of erroneous
deprivation inherent with misleading notice, and the absence of any fiscal or administrative burden
on VA to provide accurate notice, the Court holds that VA's January 1982 notice letter failed to
satisfy the requirements of procedural due process guaranteed by the Fifth Amendment to the U.S.
Constitution.


                                                  15
                                              2. Detrimental Reliance
         To prevail on his argument that VA award an earlier effective date for the grant of disability
compensation for PTSD based on his 1981 application, Mr. Noah must also demonstrate that he
relied to his detriment on the misleading notice. See Day v. Shalala, 23 F.3d 1052, 1066 (6th Cir.
1994) (although the denial notice "failed to satisfy the requirements of due process, the only
claimants who could have been injured by the inadequacy are those who detrimentally relied on the
inadequate denial notice"); see also Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995) ("[A]
plaintiff must demonstrate reliance on the allegedly defective denial notices."); Burks-Marshall v.
Shalala, 7 F.3d 1346, 1349 (8th Cir. 1993) (the appellant has no standing to raise a due process issue
where he "has not shown that the alleged deficiency in the notice had any connection in fact with
h[is] own failure to seek review of" the denial of his claim). In this case, it is undisputed that the
record is silent regarding Mr. Noah's PTSD claim until December 19, 2007, when Mr. Noah filed
another application for disability compensation for PTSD.8 Mr. Noah subsequently submitted lay
and medical evidence and testified at a Board hearing explaining the circumstances preceding his


         8
            The Secretary finds it significant that Mr. Noah failed to respond to VA's request for clarification of his
stressors or to "contact VA to ask for more time, to provide combat and service information, or to ask for clarification."
Secretary's Supplemental Memorandum at 10. The Secretary also finds it important that Mr. Noah pursued disability
benefits for a left knee condition in May 1990 and asserts that Mr. Noah's response in 1990 to VA's request for additional
evidence demonstrates that, in 1981 and 1982, he knew how to correspond with VA and diligently pursue his claim. Id.
at 16. Although it is not the province of the Court to weigh Mr. Noah's credibility in the first instance, the Secretary's
reliance on Mr. Noah's actions in 1990 as evidence of what he might have understood in 1981 and 1982 is inherently
flawed. Cf. Myers v. Principi, 16 Vet.App. 228, 233 (2002) (finding that the Board's reliance on the veteran's later
actions as "conclusive evidence" of the veteran's earlier intent "has no support in law or logic"). "Neither the Board nor
the Court can look ahead in time to determine what happened in the past." Id.

          Moreover, when determining whether Mr. Noah, in 1982, relied to his detriment on the constitutionally deficient
notice, Mr. Noah's diligence thereafter is not a factor for consideration. Rather, Mr. Noah must demonstrate that he chose
not to pursue his claim because he understood the notice to mean that his time to submit evidence was limited to 60 days.
See, e.g., Burks-Marshall, 7 F.3d at 1349-50 (although the claimant alleged that the notice of denial "gave the strong
impression that her claims would not be lost if she filed a new claim later, rather than immediately appealing," the
claimant lacked standing to raise a due process issue based on defective notice because she did "not say that after reading
the notice she understood it to mean that she could apply again at any time for benefits for the periods involved in her
denied claims, and that, for that reason, she decided to forego further review at the time"); see also Day, 23 F.3d at 1065-
66 (where denial notice did not distinguish between reapplying for benefits and appealing, detrimental reliance occurred
when, after receiving inadequate notice, the claimant filed a new application rather than continuing the appeals process,
and was presented with a claim of res judicata or received less benefits than she would have had she successfully
appealed); cf. Jernigan v. Shinseki, 25 Vet.App. 220, 229 (2012) (appellant failed to demonstrate detrimental reliance
on purportedly defective notice regarding the time to return a formal application form, where record was entirely silent
for 6 years and the appellant offered no explanation for the delay).

                                                            16
1981 application for benefits, his understanding from and reliance on the January 1982 notice letter,
and why he stopped pursuing his PTSD claim when he determined that he was unable to obtain the
requested medical evidence within 60 days of the 1982 notice letter. The Board did not assess the
weight and credibility of this evidence, because it concluded, notwithstanding VA's misleading
notice, that Mr. Noah remained subject to the 1-year abandonment provision in 38 C.F.R. § 3.158.
This was error.
       As discussed above, the January 1982 notice letter failed to satisfy the requirements of
procedural due process and, therefore, if Mr. Noah successfully demonstrates that he relied to his
detriment on the misleading notice, his December 1981 claim remained pending and unadjudicated.
See Cushman, 576 F.3d at 1300 (finding that the presentation of improperly altered material evidence
constitutes a due process violation and remanding the case for a de novo determination of Mr.
Cushman's 1977 claim without the altered evidence). Accordingly, because "the evaluation and
weighing of evidence are factual determinations committed to the discretion of the factfinder – in
this case, the Board," Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013), the Court will
vacate the Board's decision and remand the matter to the Board. On remand, the Board must assess
the weight and credibility of the lay and medical evidence of record and determine whether Mr. Noah
relied to his detriment on the 1982 misleading notice letter. If the Board concludes that Mr. Noah
detrimentally relied on the misleading notice, the Board must determine whether the evidence
establishes entitlement to disability compensation for PTSD based on Mr. Noah's 1981 claim. It
goes without saying that the Board must support its decision with sufficient explanation and
authority.
       In pursuing the matter on remand, Mr. Noah is free to submit additional evidence and
argument on the remanded matters, and the Board is required to consider any such relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to the benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that
"[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance




                                                 17
with 38 U.S.C. § 7112 (requiring the Secretary to provide for "expeditious treatment" of claims
remanded by the Court).


                                         IV. CONCLUSION
        Upon consideration of the foregoing, the November 28, 2014, Board decision is VACATED
and the matter is REMANDED for further proceedings consistent with this decision.


        LANCE, Judge, concurring in the result: Although I agree with my colleagues that the
November 28, 2014, Board decision should be remanded for the Board to determine whether the
appellant detrimentally relied on the January 1982 misleading notice, I cannot join the majority's
constitutional analysis, and so I am compelled to write separately.
        I agree with the majority's conclusion that the one-year period to submit evidence set forth
in 38 U.S.C. § 3003(a) is not subject to equitable tolling, as it is not a statute of limitations. I
disagree, however, with the majority's decision to reach the merits of the appellant's due process
argument. Although I concur that a remand is warranted for the Board to determine whether the
appellant relied to his detriment on the January 1982 notice, the fact that the Court can remand the
matter on that basis renders the majority's constitutional analysis unnecessary to the decision and
thus premature. Rather than address whether the January 1982 notice violated the appellant's Fifth
Amendment due process rights, I would exercise judicial restraint and wait to decide that question
until the Board makes the requisite underlying factual determinations. See Bucklinger v. Brown,
5 Vet.App. 435, 440-41 (1993) ("It is '[a] fundamental and long-standing principle of judicial
restraint . . . that courts avoid reaching constitutional questions in advance of the necessity of
deciding them.'" (quoting Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445
(1988))); see also Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (holding that "the Court will not
ordinarily consider additional allegations of error that have been rendered moot by the Court's
opinion or that would require the Court to issue an advisory opinion").
        Judicial restraint is particularly appropriate in this case in light of the fact that neither party
expressly raised the issue of due process in their initial briefing to the Court. See Appellant's Br. at
1-13; Secretary's Br. at 1-13. The appellant's sole argument in his initial brief is that the Board erred


                                                   18
by failing to discuss whether equitable tolling could be applied, as VA's January 1982 letter
misrepresented the time to submit evidence set forth in 38 C.F.R. § 3.158(a) (1988). Appellant's Br.
at 3-13. Indeed, he did not raise the issue of due process until his supplemental memorandum of law
in response to the Court's October 30, 2015, supplemental briefing order. Appellant's Supplemental
Memorandum at 2-3, 5. As a result, the constitutional issue is simply not sufficiently developed on
appeal. Accordingly, a remand for additional factual development at the Board would build the
proper foundation for the Court to make a fully informed decision when and if it is necessary to do
so.
        I also write separately to emphasize that the equitable relief that the appellant seeks is
available at the Secretary's discretion pursuant to 38 U.S.C. § 503(a). This Court "is not a court of
equity" and cannot mandate an award of benefits in the absence of statutory entitlement. Moffitt v.
Brown, 10 Vet.App. 214, 225 (1997); see Rosenberg v. Mansfield, 22 Vet.App. 1, 5 (2007) ("The
[U.S.] Supreme Court has held that the Appropriations Clause of the Constitution, U.S. Const. art.
I, § 9, cl. 7, precludes the judiciary from ordering an award of public funds to a statutorily ineligible
claimant on the basis of equitable estoppel." (citing OPM v. Richmond, 496 U.S. 414, 430 (1990))),
aff'd sub nom. Rosenberg v. Peake, 296 F. App'x 53 (Fed. Cir. 2008). The Secretary, on the other
hand, has the authority to grant equitable relief when he determines that an administrative error was
committed by the Federal Government or any of its employees, or if a claimant suffered loss as a
result of relying on an erroneous determination by VA. See 38 U.S.C. § 503(a). Given the Board's
concession that the January 1982 notice was misleading, R. at 8, the appellant may wish to seek
equitable relief pursuant to 38 U.S.C. § 503(a).




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