Roberto v. Ortiz v. Eric K. Shinseki

23 Vet. App. 353, 2010 U.S. Vet. App. LEXIS 327, 2010 WL 715512
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 3, 2010
Docket06-0932
StatusPublished
Cited by2 cases

This text of 23 Vet. App. 353 (Roberto v. Ortiz v. Eric K. Shinseki) 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
Roberto v. Ortiz v. Eric K. Shinseki, 23 Vet. App. 353, 2010 U.S. Vet. App. LEXIS 327, 2010 WL 715512 (Cal. 2010).

Opinions

LANCE, Judge:

Veteran Roberto V. Ortiz appeals through counsel an August 9, 2005, Board of Veterans’ Appeals (Board) decision that denied his appeal for an effective date earlier than June 28, 1994, for his service-connected bipolar disorder. In a single-judge memorandum decision issued on July 28, 2008, the Court affirmed the Board’s decision. Mr. Ortiz filed a timely motion for reconsideration, or, in the alternative, for a panel decision. Based upon this motion, a panel of the Court heard oral argument, after which the case was called for full-Court consideration. The Court’s July 28, 2008, memorandum decision is withdrawn and this opinion is issued in its place. For the reasons that follow, the Board’s August 9, 2005, decision will be affirmed.

I. FACTS

Mr. Ortiz served in the U.S. Army from October 1958 to August 1960. The San Juan, Puerto Rico, regional office (RO) denied a 1971 claim for compensation and pension for a nervous condition and headaches. Mr. Ortiz did not appeal that RO decision and it became final. On May 29, 1979, Mr. Ortiz again sought benefits for his nervous condition, and submitted evidence in support of his request. In September 1979, the RO denied his request because the evidence submitted was deemed insufficient to warrant reopening his claim. Mr. Ortiz filed a timely Notice of Disagreement (NOD) and, in October 1979, the Secretary issued a Statement of the Case (SOC). The SOC informed Mr. Ortiz that his claim was denied because the evidence he had submitted did not constitute “new and material evidence to reopen” his previously disallowed claim. Record (R.) at 174. The SOC further noted that the evidence submitted was “solely cumulative or repetitive in character” and it failed to establish that a nervous condition was incurred or aggravated in service. Id. The cover letter from VA that enclosed the SOC informed Mr. Ortiz that the SOC was being sent to him so that he could make his best argument to the Board as to why VA’s ruling “should be changed.” R. at 171. VA informed Mr. Ortiz that his argument or “Substantive Appeal” should be set out in the attached VA Form 1-9 and that he should state, in his own words, the benefit he seeks, the facts in the SOC with which he disagrees, and “any errors you believe we made in applying the law.” Id.

Several months later, in March 1980, Mr. Ortiz filed a statement in support of claim “[kjindly requesting [the] status of my claim of appeal to Washington my request service connection nervous condition.” R. at 178. In response thereto, the Secretary sent Mr. Ortiz a letter stating that “you must sübmit VA Form 1-9 [Substantive Appeal] to reactivate your appeal.” R. at 181. In May 1980, Mr. Ortiz responded to the Secretary’s letter stating that

[t]he form was sent out in November 1979, from here, the Veterans at Ponce. I can’t see the reason why you are sending me the same form l-98[sic] Appeal, if it is already filed up. Please search the records because no action has yet been taken. I hope that you can make an evaluation, since I do not see any reason why you would not want to do it. [355]*355[S]ince I have all the rights. I was 8 years waiting. I hope you will give me an appointment since I feel very sick and the treatment at Mayaguez consists only of pills and nothing else.

R. at 184.

In June 1980, the Secretary wrote to Mr. Ortiz stating that he had never received his VA Form 1-9. This letter also stated that the Secretary was sending Mr. Ortiz a new Form 1-9 for his completion and signature, and that if the form was not received within 30 days no further action would be taken on his appeal. The record copy of the letter reflects that it was incorrectly addressed to “Mr. Roberto Vidal Ordal.” R. at 195. It also reflects that a VA Form 1-9 was enclosed with the letter.

In July 1994, Mr. Ortiz again sought benefits for his nervous condition, and he stated that his medical evidence was at the VA hospital. The RO reopened his claim, but denied it based upon a lack of evidence of treatment for his psychosis during service or within the presumptive period following service. Mr. Ortiz filed an NOD (see R. at 242) and, after an extensive procedural history resulting in a March 2000 RO decision, he was granted service connection for bipolar disorder and assigned a 70% disability compensation rating and a rating of total disability based upon individual unemployability (TDIU), effective July 8, 1994. Mr. Ortiz submitted a statement that disputed the July 1994 effective date on the grounds that his condition originated in 1965 and that he had filed a claim for the same benefit in 1971. The RO considered his statement to be an NOD as to his effective date and issued an SOC in July 2001. In response to the SOC, Mr. Ortiz stated that VA had failed to process his 1979 Substantive Appeal in response to the October 1979 SOC, and therefore he requested an earlier effective date for his 100% disability rating.

Over the ensuing years, Mr. Ortiz was granted an earlier effective date of June 28, 1994, for reasons not relevant to this appeal, and he continued to seek a still earlier effective date based on his belief that the Secretary failed to properly process his 1979 claim and appeal of the RO’s decision denying that claim. In the decision we consider here on appeal, the Board affirmed the assigned effective date of June 28,1994, for Mr. Ortiz’s bipolar disorder. Relevant to this appeal, the Board concluded that Mr. Ortiz had failed to file a VA Form 1-9, or its equivalent, setting out allegations of error of fact or law, within one year from the RO’s September 1979 decision.

II. ARGUMENTS

Mr. Ortiz argues that he filed a timely Substantive Appeal to the RO’s September 1979 decision, but the Board never processed his appeal. He contends that his March 1980 statement in support of claim asking about his appeal, and his May 1980 letter informing the Secretary that he already had filed a VA Form 1-9, constituted a Substantive Appeal because the correspondence reflected his intent to appeal and was the equivalent of a VA Form 1-9. See Appellant’s Brief at 14. He further argues that his 1979 appeal was pending when he was awarded service connection in March 2000, and that he should be assigned an effective date based on his pending claim.

The Secretary argues that there is a plausible basis for the Board’s denial of an earlier effective date. The Secretary contends that the correspondence Mr. Ortiz sent to the Secretary did not contain specific allegations of error of fact or law as required by statute and regulation, and, therefore, it did not constitute a Substantive Appeal. The Secretary argues that, absent the filing of a Substantive Appeal, [356]*356the September 1979 RO decision became final the May 1979 claim and may not be the basis for an earlier effective date.

III. LAW AND ANALYSIS

A. Standard of Review

Although the Board’s assignment of an effective date generally is reviewed under the “clearly erroneous” standard of review, see Canady v. Nicholson, 20 Vet.App. 393, 398 (2006) (“A Board determination of the proper effective date is a finding of fact that the Court reviews under the ‘clearly erroneous’ standard set forth in 38 U.S.C. § 7261

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23 Vet. App. 353, 2010 U.S. Vet. App. LEXIS 327, 2010 WL 715512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberto-v-ortiz-v-eric-k-shinseki-cavc-2010.