Moore v. West

13 Vet. App. 69, 1999 U.S. Vet. App. LEXIS 1036, 1999 WL 771082

• Court: United States Court of Appeals for Veterans Claims
• Decided: September 30, 1999
• Docket: No. 97-1117
• Status: Published

Opinions

HOLDAWAY, Judge, filed the opinion of the Court. STEINBERG, Judge, filed a concurring opinion.

HOLDAWAY, Judge:

The appellant, William R. Moore, appeals a March 1997 decision of the Board of Veterans’ Appeals (BVA or Board) which denied an earlier effective date for secondary service connection for residuals of a gunshot wound to the head. Both parties have filed briefs. The Court has jurisdiction of the case under 38 U.S.C. § 7252(a). For the following reasons, the decision of the Board will be vacated and the matter will be remanded for further adjudication.

I. FACTS

The appellant served on active duty in the U.S. Air Force from January 1955 to April 1974, including service in Vietnam. The appellant has been rated as totally disabled based on individual unemployability since the date of his discharge. In October 1981, the appellant filed a claim for compensation for post-traumatic stress disorder (PTSD). In June 1982, a VA regional office (VARO) denied his claim for compensation on the grounds that he had not been diagnosed with PTSD. The VARO rating decision summarized the evidence of record as follows:

[The appellant] was admitted to [VA Medical Center], Decatur as a transfer from Kennestone Hospital with a self-inflicted [gunshot wound] to the right side of his head on 09-08-81. Following surgery to repair wound, vet’s cognitive functions improved; however, remained triplegic with involvement of the left upper and lower extremities and the right lower extremity. VA [medical examination] showed history of depression, extreme preoccupation with back, pains in legs and reliance on alcohol. Following domestic disputes with wife in early part of Sept. vet. began to rely on alcohol again, broke into house where wife and son were sleeping and shot his wife in the leg. When police arrived vet. was standing on the porch armed with a pistol and when ordered to drop the gun, [he] placed it to his head and fired.

Since the appellant was not service connected for PTSD, the VARO denied secondary service connection for the residuals of his gunshot wound. The VARO also determined that the appellant was not competent to handle his own funds.

In April 1983, the appellant, through his service representative, filed a Notice of Disagreement (NOD) on the issue of the VARO’s denial of service connection for his PTSD. The NOD listed several of the appellant’s symptoms which he argued were indicative of PTSD including'“suicide ideation and attempt.” In May 1983, the VARO issued a Statement of the Case (SOC). The SOC framed the issue on appeal to the Board as “Service connection of post[-]traumatic stress disorder.” In June 1983, the appellant filed his substantive appeal which framed the issue exactly as the SOC had. His substantive appeal did not make any new arguments, but rather referred to the arguments raised in his April 1983 NOD. In August 1983, the VARO issued a Supplemental Statement of the Case (SSOC) which restated the issue as written in the May 1983 SOC.

In June 1984, the Board remanded the appellant’s claim back to the VARO in order to obtain the appellant’s service records and for examination by two psychiatrists. The Board did not discuss the issue of secondary service connection for residuals of his gunshot wound. After obtaining this evidence, the VARO awarded his claim for PTSD in January 1985. The VARO established October 1981 as the effective date of his award, the date he filed his claim for compensation. The VARO also did not discuss the issue of secondary service connection. In February 1985, the VARO wrote a letter to the appellant which stated that all of the benefits he sought had been granted and that his appeal would be taken off the docket at the Board.

In June 1987, the appellant filed a claim for secondary service connection for the residuals of his gunshot wound including paralysis of his left arm and leg. He sought service connection for these disabilities so that he could receive “specially adapted housing and van modifications” offered by VA. In August 1987, the VARO denied his claim. In October 1989, the VARO denied another attempt by the appellant to reopen his claim for secondary service connection. In that letter, the VARO stated:

We were unable to allow his 1981 claim for paralysis and other residuals of a self-inflicted gunshot wound because the evidence did not establish that such injury was the proximate result of a service[-]connected disability. To reopen this claim, Mr. Moore should furnish new and material evidence showing a direct causal relationship between a service-connected condition and the suicide attempt.

Apparently in November 1989, the appellant again filed a claim for secondary service connection and submitted evidence in support of his claim. In January 1990, the VARO again denied his claim for secondary service connection and the appellant appealed that decision to the Board. In April 1992, the Board determined that the VARO had denied the appellant’s claim for secondary service connection in June 1982 and that he had failed to appeal this decision. Since that decision had become final, the Board concluded that the appellant was then required to submit new and material evidence to reopen his claim. After a review of the record, the Board determined that the appellant, had submitted new and material evidence and awarded secondary service connection for residuals of the appellant’s gunshot wound. In December 1992, the VARO assigned November 1989 as the effective date of the award, the date he had filed his claim. Again, the appellant appealed this decision to the Board contending that he should have been service connected for this condition since the time of the incident.

After reviewing the evidence, the Board concluded that the appellant was entitled to an effective date of October 1989, but that the preponderance of the evidence was against a finding of an effective date earlier than October 1989. The Board decided that the June 1982 and August 1987 rating decisions had become final and were subsumed by the April 1992 decision of the Board. The Board determined that clear and unmistakable error (CUE) could not exist in the April 1992 Board decision because Board decisions could not be reviewed on the basis of CUE.

II. ANALYSIS

A. NOD

The appellant argues that the Board erred by failing to adjudicate his claim for secondary service connection in June 1984. The Secretary counters by arguing that the appellant failed to file a timely NOD to the June 1982 VARO decision with respect to the issue of secondary service connection. The issue before the Court, therefore, is whether or not the appellant filed a timely NOD to contest the June 1982 VARO decision on the issue of secondary service connection.

An NOD is defined by regulation as “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the [VARO] and a desire to contest the result”; it “must be in terms which can be reasonably construed as [expressing] disagreement with that determination and a desire for appellate review”. 38 C.F.R. § 20.201 (1998), see Fenderson v. West, 12 Vet.App. 119 (1999). To be valid, an NOD must be filed within “one year from the date of mailing of notice of the result of initial review and determination” made by the VARO. 38 U.S.C. § 7105(b)(1); see Fenderson, supra. Whether a document constitutes a valid NOD is a question which the Court reviews de novo. Fenderson, supra.

Since the Board issued its decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has issued two opinions discussing what constitutes a valid NOD. See Collaro v. West, 136 F.3d 1304 (Fed.Cir.1998); Ledford v. West, 136 F.3d 776 (Fed.Cir.1998). In Ledford, the Federal Circuit held that ah NOD must merely indicate disagreement with a particular determination while the appellant’s substantive appeal “should set out specific arguments relating to errors of fact or law.” Id. at 780 (quoting 38 C.F.R. § 20.202). In Collaro, the Federal Circuit held that the “statutory and regulatory regime that Congress created to protect veterans” allows a claimant to file a “vague NOD” and at a later time “cut the rough stone of his NOD to reveal the ... radix of his issue that lay within.” Collaro, 136 F.3d at 1308-09. In other words, the Federal Circuit held that a valid NOD must merely express dissatisfaction with the VARO decision but need not identify the specific errors of fact or law. Although the Federal Circuit attempted to reconcile these two opinions, its effort to do so was not entirely satisfactory. The “radix” of the issue raised within an NOD can be murky indeed. See Buckley v. West, 12 Vet.App. 76 (1998) (Court’s reconciliation of the Federal Circuit’s decisions).

In this case, the Court finds the appellant’s April 1983 NOD to the VARO’s June 1982 rating decision to be sufficient to encompass the issue of secondary service connection. While the June 1982 rating decision stated that secondary service connection was at issue, it confined its discussion to the issue of service connection for the appellant’s PTSD condition. In his NOD, the appellant likewise focused his attention on his PTSD condition. Any discussion by either the VARO or the appellant of conditions secondary to PTSD would have been premature until the issue of service connection had been resolved. Nonetheless, the appellant listed his suicide attempt as a symptom of his PTSD condition. This reference was of particular importance because it presented the issue of secondary service connection to the Board. In the Court’s opinion, this reasonably placed the Board on notice that the issue of secondary service connection was still at issue. Therefore, the June 1984 Board decision erred by failing to adjudicate the appellant’s claim for secondary service connection. Furthermore, the March 1997 Board decision erred by finding that the appellant had faded to submit a timely NOD on the issue of secondary service connection. On remand, the Board must adjudicate the issue of the effective date of secondary service connection based on all the evidence presently of record for the appellant claim dated October 1981.

B. CUE

When a claim is denied by the VARO and the claimant fails to file a timely appeal to that decision as prescribed by 38 U.S.C. § 7105(b)(1), that decision becomes final. 38 U.S.C. § 7105(c). In the absence of new and material evidence, decisions which are “final and binding ... will be accepted as correct in the absence of clear and unmistakable error.” 38 C.F.R. § 3.105(a) (1996), accord Person v. Brown, 5 Vet.App. 449 (1993). A claim for CUE concerning a final, unappealed VARO decision may not be considered when the Board has later reviewed the entire record and denied the benefits previously denied by the VARO decision. See Donovan v. Gober, 10 Vet.App. 404 (1997). The previous VARO decision will be considered subsumed by the later Board decision and may not be collaterally attacked. Id. The later Board decision may, of course, be collaterally attacked on the basis of CUE. See 38 U.S.C. § 7111.

In this case, the Board found that the April 1992 Board decision subsumed the June 1982 and August 1987 VARO decisions. However, the April 1992 Board decision did not deny the benefits which had been previously denied by the VARO decision. Rather, the Board granted the benefits sought. According to this Court’s holding in Donovan, the Board must deny the benefits sought in order for the earlier VARO decision to be subsumed. See id. It would be incongruous for a-Board decision which granted the benefits sought to prevent a claimant from seeking an earlier effective date by attacking, via CUE, the previous VARO decision which had denied the claim. See 38 C.F.R. § 20.1104 (“When a determination of the agency of original jurisdiction is affirmed by the Board ..., such determination is subsumed by the final appellate decision.”). Certainly if the CUE claim attacking a previous VARO decision had merit, the later Board decision would grant the benefits sought. The Board, therefore, erred by failing to consider the appellant’s claim for CUE in the August 1987 VARO decision. The Court holds that the June 1982 VARO decision is not a final decision and the appellant cannot collaterally attack that decision until it becomes final.

III. CONCLUSION

Accordingly, the decision of the Board is VACATED and the matter REMANDED for further proceedings.