Thomas F. Cacciola v. Sloan D. Gibson

27 Vet. App. 45, 2014 U.S. Vet. App. LEXIS 1255, 2014 WL 3586054
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 22, 2014
Docket12-1824
StatusPublished
Cited by33 cases

This text of 27 Vet. App. 45 (Thomas F. Cacciola v. Sloan D. Gibson) 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
Thomas F. Cacciola v. Sloan D. Gibson, 27 Vet. App. 45, 2014 U.S. Vet. App. LEXIS 1255, 2014 WL 3586054 (Cal. 2014).

Opinions

SCHOELEN, Judge:

The appellant, Thomas F. Cacciola, appeals through counsel a March 29, 2012, Board of Veterans’ Appeals (Board or BVA) decision that (1) dismissed the appellant’s motion to reverse or revise on the basis of clear and unmistakable error (CUE) the Board’s December 4, 2006, decision denying an effective date earlier than August 6, 1998, for the award of service connection for bilateral hearing loss; and (2) denied the appellant’s motion to reverse or revise on the basis of CUE the Board’s December 4, 2006, decision denying an initial compensable disability rating for the appellant’s bilateral hearing loss disability. Record of Proceedings (R.) at 3-11. This appeal is timely, and the Court has jurisdiction to review the Board’s March 2012 decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).

In January 2010, the appellant had directly appealed the December 4, 2006, Board decision, and in a June 2011 single-judge memorandum decision the Court affirmed the December 2006 Board decision. The Court considered the issue regarding an initial-compensable-rating abandoned. Cacciola v. Shinseki No. 10-0141, 2011 WL 2530942 (U.S. Vet.App. June 27, 2011) (mem. dec.).

This case was referred to a panel to . address whether the law permitted the Board, in its March 2012 decision, to (1) dismiss the appellant’s motion to reverse or revise the Board’s effective-date determination, when the Court had previously affirmed the underlying decision, but (2) consider the merits of the appellant’s motion to reverse or revise the denial of an initial compensable disability rating for bilateral hearing loss, which the Court deemed abandoned in the appellant’s direct appeal of the 2006 decision. The Court sua sponte raises these questions to clarify whether a Notice of Appeal (NOA) places all final Board decisions on issues in the same document on appeal before the Court, and the preclusive effect, if any, of the Court’s determination that an issue has been abandoned or was not otherwise raised on appeal.

For the reasons discussed below, the Court holds that an NOA places the entire Board decision on appeal. However, when an appellant expressly abandons an issue in his initial brief or fails to present any challenge and argument regarding an issue, the abandoned issue generally is not reviewed by the Court. Consistent with the Secretary’s interpretation of 38 C.F.R. § 20.1400(b)(1) (2014), which precludes revision of final Board decisions on issues that have been appealed, to and decided by a court of competent jurisdiction, the Court holds that an abandoned issue is not decided by the Court for purposes of de[49]*49termining the availability of a collateral attack based on CUE. Accordingly, in such instances, a claimant is not barred from bringing a motion to reverse or revise a Board decision on an abandoned issue. Upon review of the parties’ arguments, the Court will affirm the Board’s March 29, 2012, decision.

I. BACKGROUND

The appellant honorably served on active duty in the U.S. Army from August 1950 to April 1952. R. at 2918. In April 2005, a VA regional office (RO) granted the appellant’s claim for service connection for bilateral hearing loss, but assigned him a noncompensable disability rating, effective November 27, 2000. R. at 1548-62. On appeal, the Board issued a decision on December 4, 2006, that awarded an earlier effective date, August 6, 1998, for the grant of service connection for bilateral hearing loss, but continued to deny an initial compensable disability rating. R. at 962-85. In denying a compensable rating, the Board reviewed February 1998, August 2000, and October 2004 VA audiological examination results, but found under the applicable rating criteria for hearing loss that the appellant’s hearing impairment was not compensable. R. at 973-76. The Board also denied referral for extras-chedular consideration, finding that there was “no basis for further action on this question as there [we]re no circumstances presented which the Director of. VA’s Compensation and Pension Service might consider exceptional or unusual.” R. at 980.

Following an extensive history, the appellant filed through counsel an appeal of the December 4, 2006, Board decision to this Court. R. at 36. On June 27, 2011, the Court issued a memorandum decision that affirmed the December 4, 2006, Board decision. See Cacciola, supra. The Court identified the matter on appeal as “the December 4, 2006, decision of the Board ... that denied entitlement to an effective date earlier than August 6, 1998, for the grant of service connection for bilateral hearing loss,” and “deemed abandoned” the appellant’s claim for an initial compen-sable disability rating because he had not raised any arguments in his brief with respect to that claim. Cacciola, 2011 WL 2530942, at *1. The Court addressed the appellant’s arguments relating to the Board’s denial of an effective date earlier than August 6, 1998, but found them unavailing. Id. at *2-4. Mandate issued on September 20,2011. R. at 37.

In the March 29, 2012, decision here on appeal, the Board dismissed the appellant’s motion to reverse or revise on the basis of CUE the December 4, 2006, decision with respect to the effective date. R. at 6. The Board found that the Court’s June 2011 memorandum decision had affirmed the Board’s 2006 decision on that issue and, therefore, 38 C.F.R. § 20.1400(b) precluded any challenge on the basis of CUE. R. at 8-9. Upon noting, however, that the Court in its June 2011 memorandum decision found the appellant to have abandoned the issue of entitlement to an initial compensable disability rating for bilateral hearing loss, the Board adjudicated the merits of the appellant’s CUE motion on this issue, finding that he failed to demonstrate the kind of error that would have manifestly changed the outcome of the 2006 decision. R. at 9-15.

The appellant, then pro se, filed a timely NOA and submitted an informal brief disagreeing with the Board’s decision on both CUE motions. Following a stay of proceedings, the appellant retained counsel and the Court granted the parties leave to submit supplemental briefs to address the panel issue identified by the Court— whether revision of a Board decision on [50]*50the basis of CUE is available for an issue that is abandoned on appeal to the Court.

II. PARTIES’ POSITIONS ON THE PANEL QUESTION

In their supplemental briefs, the appellant and the Secretary agree that the governing statute and regulation do not preclude a claimant from seeking to reverse or revise on the basis of CUE a Board decision on an issue that was abandoned on appeal. Appellant’s Supplemental Brief (Suppl. Br.) at 5-13; Secretary’s Suppl. Br. at 9-17. The parties assert that “[a]ll final Board decisions” are subject to revision except decisions on issues that have been “appealed to and decided by a court of competent jurisdiction,” and that both requirements must be satisfied to prevent the Board from adjudicating a motion to revise a Board decision on an issue. 38 C.F.R. § 20.1400(b).

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27 Vet. App. 45, 2014 U.S. Vet. App. LEXIS 1255, 2014 WL 3586054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-f-cacciola-v-sloan-d-gibson-cavc-2014.