Porter v. Brown

5 Vet. App. 233, 1993 U.S. Vet. App. LEXIS 195, 1993 WL 208772
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 16, 1993
DocketNo. 92-296
StatusPublished
Cited by12 cases

This text of 5 Vet. App. 233 (Porter v. Brown) 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
Porter v. Brown, 5 Vet. App. 233, 1993 U.S. Vet. App. LEXIS 195, 1993 WL 208772 (Cal. 1993).

Opinion

IVERS, Associate Judge:

Betty H. Porter appeals a November 7, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) finding no clear and unmistakable error in an April 1974 rating decision. Betty H. Porter, BVA 91-36384 (Nov. 7, 1991). The Secretary of Veterans Affairs (Secretary) has filed a motion for summary affirmance. The Court has jurisdiction of the case pursuant to 38 U.S.C.A. § 7252(a) (West 1991). For the reasons set forth below, we affirm the November 7, 1991, decision of the BVA.

FACTUAL BACKGROUND

Veteran John M. Porter served in the United States Air Force from July 22, 1943, to March 15,1946. R. at 21. On March 30, 1946, following appellant’s application to a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO), the RO granted service connection for soft systolic mitral murmur (rated as 0% disabling). Ibid. On August 9, 1966, the RO denied an increased evaluation for his service-connected systolic mitral murmur and denied service connection for arte-riosclerotic heart disease' with angina, pec-toris. R. at 37.

The veteran died on April 28,1973. R. at 40. The death verification certificate stated that the immediate cause of his death was congestive heart failure “due to, or as a consequence of” arteriosclerotic heart disease. Ibid. On April 15, 1974, his widow, appellant in this appeal, filed an appli[235]*235cation for dependency and indemnity compensation (DIC). R. at 41; see R. at 45. On April 29, 1974, the RO denied service connection for the veteran’s death (R. at 46) and sent notice to appellant on May 8, 1974 (R. at 66). Because appellant did not appeal within one year from the date of mailing of the notice, the RO’s decision became final. See 38 U.S.C.A. § 7105(b)(1) (West 1991).

On March 10, 1989, appellant sought to reopen the claim for DIC benefits (R. at 58) and submitted letters from physicians, a personal statement, a newspaper article, and duplicate records (R. at 47-57). On January 29, 1990, based on appellant’s new evidence, the RO found that the veteran’s service-connected systolic mitral murmur was a contributory cause of death and granted service connection for the veteran’s death, with DIC benefits effective April 1, 1989. R. at 61. On September 27, 1990, appellant filed a Notice of Disagreement, seeking an earlier effective date, retroactive to her original claim in 1974, for the DIC benefits. R. at 62. Following a personal hearing, a hearing officer wrote that an effective date earlier than April 1, 1989, was not warranted because the April 1974 rating decision was not “clearly erroneous.” R. at 76. On March 6, 1991, appellant filed a substantive appeal to the BVA, stating that “there are obvious errors of fact in the [hearing officer’s] decision.” R. at 77. In August 1991, appellant’s service representative sent a “Statement of Accredited Representation in Appealed Case,” stating that “the decision of [April 1974] could have been erroneous” and that “it is extremely likely that there was an erroneous decision made when [appellant] filed for benefits.” R. at 83. On November 7, 1991, the BVA found that there had been no clear and unmistakable error in the April 1974 RO rating decision and denied an earlier effective date. Porter, BVA 91-36384, at 7.

ANALYSIS

As a threshold matter, the Secretary argues that this was a reopened claim and that the Board should not have reached, sua sponte, the issue of whether this was a case of clear and unmistakable error, but that the Board’s determination on that issue was harmless error. Secretary’s Motion at 7. However, once a claimant has submitted a well-grounded claim, the Board has a duty to assist that claimant, a duty which involves, in part, determining what issues have been raised. See Myers v. Derwinski, 1 Vet.App. 127, 130 (1991) (“BVA must review all issues which are reasonably raised from a liberal reading of the appellant’s substantive appeal”); EF v. Derwinski, 1 Vet.App. 324, 326 (1991) (VA’s duty to assist involves considering issues raised in all documents or testimony submitted before a BVA decision). The Board thus properly reached the issue of whether the prior rating decision was based on clear and unmistakable error.

The issue before this Court, then, is limited to whether the BVA’s November 1991 decision that there was no clear and unmistakable error in the April 1974 RO rating decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 38 U.S.C.A. § 7261(a)(3)(A) (West 1991); see Villalobos v. Principi, 3 Vet.App. 450, 452 (1992); Archer v. Principi, 3 Vet.App. 433, 437 (1992) (Court cannot conduct “plenary review of the merits of the original decision”); Russell v. Principi, 3 Vet.App. 310, 315 (1992) (consolidated with Collins v. Principi, No. 90-416) (en banc) (Court review of a decision “that has considered possible ‘clear and unmistakable error’ in previous adjudications over which [it] does not have jurisdiction is necessarily limited” to the standard of review enunciated above).

Under 38 C.F.R. § 3.105(a) (1992), “Previous determinations which are final and binding ... will be accepted as correct in the absence of clear and unmistakable error.” “Clear and unmistakable” errors are “undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Russell, 3 Vet.App. at 313-14 (emphasis added). Where evidence establishes such error, the [236]*236prior decision will be reversed or amended. Id. at 314. “A determination that there was a ‘clear and unmistakable error’ must be based on the record and the law that existed at the time of the prior [agency of original jurisdiction (AOJ) ] or BVA decision.” Russell, 3 Vet.App. at 314 (emphasis added). Therefore, evidence that was not of record at the time of a prior AOJ or BVA decision cannot be the basis of a finding that the AOJ or BVA committed clear and unmistakable error.

In its November 1991 decision, upon reviewing appellant’s evidence in support of her resubmitted claim, the Board stated:

There existed no basis, in view of the ... evidentiary record, to allow the [AOJ] to conclude that the veteran had died of a disorder related to his period of active service. It is our judgment that the April 29, 1974, rating decision by the [AOJ] constituted a reasonable exercise of rating judgment based upon the evidence then of record.

Porter, BVA 91-36384, at 5. The Board further stated:

It was not until receipt of the fall 1989 opinions of the private doctors that the RO could conclude from the record that the veteran died of a disability related to his period of active service. Such a conclusion could not reasonably have been reached on the basis of the medical evidence which was of record before the RO when they promulgated their April 29, 1974, rating decision which denied entitlement to service connection for the cause of the veteran’s death.

Id. at 6-7.

At the time of the RO’s rating decision in April 1974, the veteran’s service medical records (R. at 1-19), 1966 treatment records (R. at 22), 1966 VA examination records (R. at 23 — 35), the April 1973 death verification certificate signed by Dr. Max Jones, a private physician (R.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

190415-38331
Board of Veterans' Appeals, 2021
201012-121238
Board of Veterans' Appeals, 2021
200115-53563
Board of Veterans' Appeals, 2020
181004-499
Board of Veterans' Appeals, 2019
14-33 618
Board of Veterans' Appeals, 2014
Beausoleil v. Brown
8 Vet. App. 459 (Veterans Claims, 1996)
Mason v. Brown
8 Vet. App. 44 (Veterans Claims, 1995)
Caffrey v. Brown
6 Vet. App. 377 (Veterans Claims, 1994)
Ternus v. Brown
6 Vet. App. 370 (Veterans Claims, 1994)
Graves v. Brown
6 Vet. App. 166 (Veterans Claims, 1994)
Fugo v. Brown
6 Vet. App. 162 (Veterans Claims, 1994)
Olson v. Brown
5 Vet. App. 430 (Veterans Claims, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
5 Vet. App. 233, 1993 U.S. Vet. App. LEXIS 195, 1993 WL 208772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-brown-cavc-1993.