Michael W. Canady v. R. James Nicholson

20 Vet. App. 353, 2006 U.S. Vet. App. LEXIS 1596, 2006 WL 2563459
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 7, 2006
Docket03-1021
StatusPublished

This text of 20 Vet. App. 353 (Michael W. Canady v. R. James Nicholson) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michael W. Canady v. R. James Nicholson, 20 Vet. App. 353, 2006 U.S. Vet. App. LEXIS 1596, 2006 WL 2563459 (Cal. 2006).

Opinions

KASOLD, Judge:

Veteran Michael W. Canady appeals pro se from two July 31, 2002, Board of Veterans’ Appeals (Board) decisions. In the first decision (Decision 1), the Board denied an effective date earlier than April 20, 1993, for the award of service connection for post-traumatic stress disorder (PTSD) and for a total disability rating based on individual unemployability (TDIU). Record (R.) at 1-11. In the second decision (Decision 2), the Board dismissed, without prejudice to refiling, a request for revision on the basis of numerous assertions of clear and unmistakable error (CUE) in the Board’s April 1991 decision denying service connection for PTSD. R. at 13-30. On November 29, 2002, and again on May 14, 2003, Mr. Canady filed requests for reconsideration as to both decisions with the Board Chairman. Both requests were denied, on March 14, 2003, and September 5, 2003, respectively. On April 26, 2005, a single judge of the Court issued a decision affirming Decision 1 and dismissing the appeal as to Decision 2 for lack of jurisdiction. On June 20, 2005, the Court granted Mr. Canady’s motion for a panel decision and withdrew the single-judge decision. For the reasons set forth below, Decision 1 will be affirmed and Decision 2 will be set aside and the matter remanded for adjudication.

I. BACKGROUND

Mr. Canady served on active duty in the U.S. Army from September 1966 to August 1968, including service in Vietnam. R. at 32. In July 1988, he sought VA benefits for “delayed stress syndrome— Vietnam.” R. at 106-09. In connection with that claim, Mr. Canady underwent a VA examination in September 1988, and the examiner noted that there “is a possibility that Mr. Canady does have some [PTSD,] which has resolved to some extent.” R. at 114. The VA regional office (RO) determined that it could not rate Mr. Canady’s claim for PTSD based on this diagnosis. R. at 117. In a June 1989 “Reconciliation of Diagnosis” report, a board of three VA staff psychiatrists reported diagnoses of occupational problems and alcohol abuse, and “[p]ersonality disorder not otherwise specified with avoidant, passive-aggressive and self-defeating traits.” R. at 128. The board of psychiatrists indicated that it did not appear that Mr. Canady met the criteria for a continuing diagnosis of PTSD. R. at 127. In July 1989, the RO denied service connection for PTSD on the ground that a PTSD diagnosis had not been rendered. R. at 135-36. Mr. Canady appealed (R. at 168, 177-81, 183), and in April 1991, the Board denied his claim for service connection for PTSD (R. at 198-202). Mr. Canady did not appeal and consequently that decision became final.

In April 1993, Mr. Canady filed a claim for VA benefits for, inter alia, “nerves” and “stress.” R. at 218-21. After subsequent development and an initial denial of his claim (R. at 300-02, 354-56, 421-23, 433-[356]*35635, 440, 454-59, 479-80), in July 1996 the RO granted Mr. Canady’s claim, awarded service connection for PTSD, and assigned a 30% disability rating effective from February 1994 (R. at 490-95). Mr. Canady disagreed with the assigned rating and, in June 1997, he was assigned a 70% rating for his PTSD and was granted TDIU, both effective from February 1994. R. at 497, 1041 — 45. Mr. Canady continued to disagree with the effective date assigned and sought an effective date of July 1988, the date of his initial claim. R. at 1047.

In an April 1998 decision following a personal hearing, a VA hearing officer granted an earlier effective date of April 1993 for Mr. Canady’s award of service connection for PTSD and the assignment of a TDIU rating. R. at 1096-98. In July 1998, Mr. Canady expressed his continued disagreement with the effective date assigned. R. at 1108-10. In November 1999, Mr. Canady also filed a request for revision on the basis of CUE in the April 1991 Board decision. R. at 1135-45. In May 2000, the Board issued two separate decisions: in the first decision, the Board denied an effective date earlier than April 1993 for the award of service connection for PTSD and for a TDIU rating (R. at 1164-73) and, in the second decision, the Board determined that the April 1991 Board decision denying service connection for PTSD was not the product of CUE (R. at 1148-60). On appeal, the Court granted the Secretary’s motion to remand both matters. R. at 1176-81, 1184.

On remand, the Board issued the decisions on appeal. R. at 1-30. With regard to the effective date for Mr. Canady’s award of service connection for PTSD, the Board in Decision 1 stated the following:

The threshold issue is whether the veteran submitted a claim for PTSD between April 30, 1991 (the date of the Board decision) and April 20, 1993 (the current effective date), upon which an earlier effective date could be established. Normally, once a veteran files a claim, the claim remains open and pending until final action is taken by the RO....
After a review of the claims file, the Board finds that the only written communication received from the veteran in the period between the Board decision of April 30, 1991, and the VA Form 21-526, which was received on April 20, 1993, was the copy of the June 1991 Power of Attorney and Fee Agreement document between the veteran and his then attorney. However, no specific mention was made regarding the veteran’s PTSD claim. Accordingly, this document does not constitute a formal or informal claim for benefits.

R. at 8-9 (citations omitted). The Board further discussed the medical treatment records in the file for the period from April 1991 to April 1993 and concluded that the records showed “no treatment for PTSD during that period,” and that Mr. Canady “did not indicate his intent to seek service connection for PTSD during [that] period.” R. at 9. It also concluded that there was no legal basis for the assignment of an earlier effective date for Mr. Canady’s award of service connection for PTSD. R. at 9. In addition, with regard to the effective date for the assignment of a TDIU rating, the Board noted that PTSD was Mr. Canady’s only service-connected disability and concluded that, because a TDIU rating is warranted only “when the veteran is unemployable by reason of a service-connected disability,” the Board could not grant an effective date for the TDIU rating that was earlier than the effective date for his award of service connection for PTSD. R. at 9.

With regard to Mr. Canady’s request for revision on the basis of numerous CUE [357]*357assertions in the April 1991 decision, the Board in Decision 2 concluded that “the allegations advanced in the motion do not set forth clearly and specifically the alleged clear and unmistakable errors of fact or law in the Board decision, including how the result of the April 1991 Board decision would have been manifestly different but for the error[s]” and, on that basis, the Board dismissed the request for revision without prejudice to refiling. R. at 30.

On appeal to the Court, Mr. Canady argues that he is entitled to an earlier effective date for his award of service connection for PTSD and for the assignment of a TDIU rating, and that the Board erred by dismissing his request for revision. See, e.g., Appellant’s Brief (Br.) at 4-9, 15-19, 21. The Secretary argues that there is a plausible basis in the record for the Board’s determinations regarding the effective date for Mr. Canady’s award of service connection for PTSD and his TDIU rating. Secretary’s Br. at 11-13. In that regard, he contends that the effective date was properly based on the date of Mr. Canady’s April 1993 reopened claim. Id. at 12.

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Bluebook (online)
20 Vet. App. 353, 2006 U.S. Vet. App. LEXIS 1596, 2006 WL 2563459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-w-canady-v-r-james-nicholson-cavc-2006.