West v. Brown

7 Vet. App. 329, 1995 U.S. Vet. App. LEXIS 35, 1995 WL 23407

• Court: United States Court of Appeals for Veterans Claims
• Decided: January 23, 1995
• Docket: No. 92-420
• Status: Published

Opinions

HOLDAWAY, Judge, filed the opinion of the Court. STEINBERG, Judge, filed a dissenting opinion in which KRAMER, Judge, joined.

HOLDAWAY, Judge:

The appellant, Walter F. West, appeals the March 3, 1992, Board of Veterans’ Appeals (BVA or Board) decision which assigned an effective date of March 5, 1957, for service connection of the appellant’s defective vision of the left eye and denied his claim for entitlement to an evaluation in excess of 10% for defective vision. The Secretary filed a motion for summary affirmance. To ensure consistency of this Court’s precedent, the Court has determined in accordance with our Internal Operating Procedures that an en banc opinion is appropriate. For the reasons set forth below, the Court dismisses the appeal for lack of jurisdiction.

I. BACKGROUND

The appellant served on active duty in the United States Army from August 29,1944, to June 26,1946. At his induction the appellant had left eye strabismus and left eye vision of 20/200, both corrected and uncorrected. During sendee the appellant received an injury to the left eye simultaneous with suffering a concussion. At his discharge examination, the appellant’s left eye vision had decreased. Left eye abnormalities were diagnosed as compound myopic astigmatism and a history of amblyopia following concussion, although no abnormalities were observed in the eye as a result of the concussion.

The appellant filed a claim for compensation and pension (C & P) with VA in July 1946. In his claim, the appellant indicated that he had no vision in his left eye except for the ability to distinguish between light and dark. In a rating decision dated August 28, 1946, a VA regional office (RO) rejected the appellant’s claim for service connection for an eye disability, finding that his compound myopia and astigmatism were constitutional or development abnormalities which were not compensable. This decision was not appealed.

The appellant submitted additional evidence in 1956 and 1957 describing the injury to his eye during service, and medical records of his current eye disability. VA did not take any action in response to this evidence. The appellant filed another claim for C & P on August 27, 1961. Again, VA did not act. When the appellant filed another C & P claim in 1985, VA did grant a non-service-connected pension, but took no action regarding the claim for compensation.

On February 23, 1987, the appellant filed yet another claim with VA requesting disability compensation for defective vision of the left eye. In March 1987, the RO denied the appellant’s left eye disability claim. In January 1988, the appellant filed a Notice of Disagreement (NOD). He stated that he should have been receiving disability compensation since his discharge in 1946. In the letter noting disagreement, the appellant also referred to the possible “incompetence” of the eye examination he received at the time of his 1946 claim. A rating decision dated February 1, 1988, confirmed and continued the denial of service connection for the appellant’s left eye disability, finding that there was no new factual basis to warrant a change in the prior decisions. In the Statement of the Case (SOC) prepared February 8, 1988, the RO listed the pertinent law and regulations, including 38 C.F.R. § 3.104(a) (1987).

A BVA decision dated September 13,1988, remanded the appellant’s 1987 claim for service connection for a left eye disorder so that further eye examinations could be conducted. For various reasons, these examinations were never performed. In rating decisions dated March 23, 1989, and December 18, 1989, the RO continued the denial of service connection for a left eye disorder.

A June 27, 1990, BVA decision concluded that the evidence submitted since the August 1946 rating action established a new factual basis showing that the appellant had defective vision in his left eye that was aggravated by active wartime service. Accordingly, the BVA granted the appellant entitlement to service connection for defective vision in his left eye and returned the claim to the RO for assignment of a disability rating. The BVA also determined that the RO decision of August 1946 which denied the appellant’s claim for service connection for myopia and astigmatism was final and not clearly and unmistakably erroneous based on the evidence on file at that time. In a July 18, 1990, rating decision the RO found that the appellant’s left eye condition was 20% disabling at the time of induction and that it was currently 30% disabling. The RO assigned a 10% rating on the basis of aggravation effective February 23, 1987, the date on which the appellant had filed his claim.

On September 7, 1990, the appellant filed an NOD with the July 1990 RO decision, expressing written disagreement with both the effective date and the assigned 10% rating. In a March 14, 1991, letter to the RO, the appellant again claimed entitlement to an earlier effective date, this time specifically rather than inferentially claiming that there had been “clear and unmistakable error” (CUE) in the August 1946 rating decision that warranted a revision of that decision under 38 C.F.R. § 3.104(a) (1994). See Mata v. Principi, 3 Vet.App. 558 (1992). On May 2, 1991, the RO denied entitlement to an earlier effective date as well as to an increased rating. Cf. Smith v. Brown, 35 F.3d 1516, 1522, 1527 (Fed.Cir.1994) (an RO does not have the authority to collaterally review BVA final decisions).

In the March 3, 1992, BVA decision (the decision on appeal), the BVA, finding that the appellant had submitted an informal claim through medical records submitted in March 1957, awarded an earlier effective date of March 5, 1957, for defective vision, but denied an effective date retroactive to 1946 and denied a rating in excess of 10%. The Board further determined without elaboration or explanation that the issue of whether the 1946 rating action was a result of CUE was not properly before the Board in 1990 and that, therefore, the findings of fact and conclusions of law pertaining thereto were merely dicta. The Board then reconsidered and once again denied the CUE claim.

II. ANALYSIS

In order for the Court to have jurisdiction over a case, the appellant must have filed a valid NOD as to that case on or after November 18, 1988. See Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); Hamilton v. Brown, 4 Vet.App. 528, 531 (1993), aff'd, 39 F.3d 1574 (Fed.Cir.1994). The question presented here is whether under Hamilton the September 1990 document is a valid NOD for purposes of VJRA § 402 or whether the original January 1988 NOD is the only valid NOD as to those matters. We hold that the NOD filed in January 1988 initiated the appeal in this ease and that all subsequent adjudications of this disability claim, including the rating and the effective date (CUE) elements, were part of the case to which the January 1988 NOD applied.

Recently the Federal Circuit in Hamilton v. Brown, 39 F.3d 1574 (Fed.Cir.1994) considered whether there can be more than one NOD relating to the same claim. The Federal Circuit essentially affirmed this Court’s opinion holding that there can only be one NOD relating to the same case. In that ease, appellant Hamilton filed an NOD in June 1986 when the RO denied his claim for service connection for post-traumatic stress disorder (PTSD), the BVA remanded to the RO in 1987 for further development, the RO reaffirmed its denial, Hamilton disagreed, the BVA remanded again in December 1988, the RO reaffirmed its denial, Hamilton filed a VA Form 1-9, Appeal to the BVA (Form 1-9) in 1989, and the BVA issued its decision in 1990 finding that the appellant had not shown PTSD. Id. at 1577-79. This Court dismissed for lack of jurisdiction. Id. at 1579-80. After a thorough review of the appellate process, legislative history of section 402 of the VJRA, and applicable VA regulations, the Federal Circuit concluded that the jurisdiction-creating NOD referred to in section 402 is “one which initiates appellate review ” of a claim. Id. at 1582, 1586. In appellant Hamilton’s case, the Federal Circuit found that the June 1986 NOD initiated appellate review, not the 1989 Form 1-9, and it affirmed this Court’s dismissal for lack of jurisdiction. Id. at 1586.

We note that the statute uses the word “case” rather than “claim.” However, because the only “cases” over which this Court has jurisdiction are administrative claims appealed to the BVA, the words “case” and “claim” may be used interchangeably, and have been used interchangeably by both this Court and the Federal Circuit. Significantly, Congress did not use, as it could have, the word “issue” in defining a jurisdiction-creating NOD. Thus, any interpretation, as for example the dissent, that would split a single claim, like an amoeba, into separate and distinct claims as to each element for jurisdictional purposes, would run afoul of the clear statutory language. This does not mean that NODs which are filed in response to adjudications of subissues are without legal effect. Obviously, they do trigger a further appeal of the case to the BVA. It does mean, however, that the NOD that initiated the original appeal of the case is the one that does, or does not, create jurisdiction in this Court., This interpretation also accords with common sense since it precludes an interpretation which would give this Court jurisdiction over only part of a case.

In the ordinary case, such as the one here, a veteran files a claim for compensable disability benefits under 38 U.S.C. §§ 1110 or 1131. A disability case or claim necessarily includes the elements of (1) the veteran’s status, (2) existence of a disability, (3) service connection of that disability, (4) degree of disability, and, when in question, (5) effective date. See Sarmiento v. Brown, 7 Vet.App. 80, 87 (1994) (Kramer, J., concurring) (“[S]tatus was merely one element of a claim to be established in the same way as any other element involved in a claim, such as service connection or degree of disability.”); cf. Bernard v. Brown, 4 Vet.App. 384, 392 (1993) (Claimants “submit claims for VA benefits, which, in eases of previously and finally denied claims, implicate both the question of whether there is new and material evidence to reopen the claim and the question of whether, upon such reopening, the claimant is entitled to the requested benefits_ Although the two questions are distinct, they are components of a single claim for benefits.”).

A successful claimant has not had his ease fully adjudicated until there is a decision as to all essential elements, i.e., status, disability, service connection, rating, and when in question, effective date. When, as here, the RO denies- the claim at the threshold because of lack of service connection, it had neither the obligation nor opportunity to assign a rating to the disability or, when in question, assign an effective date. Therefore, when, as in this case, there is a reversal on the question of service connection on appeal by the BVA, the ease is, necessarily, returned for adjudication of the other essential elements. However, when the ease is returned to the RO, it is the same case upon which the RO originally acted. The NOD as to that original adjudication initiated the appeal that ultimately required further adjudication. The fact remains that these further adjudications of the case are inextricably part of the case originally filed and are extensions of the appeal that was filed. See Ephraim v. Brown, 5 Vet.App. 549, 550 (1993) (holding that veteran’s subsequent claim of PTSD was inextricably intertwined with his rated claim for depressive neurosis and could not support a separate NOD that would confer jurisdiction).

For purposes of determining the jurisdiction-creating NOD date, this case fits within the perimeter of Hamilton, 4 Vet.App. at 538:

There can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.... [Wjhere the BVA remands to an RO for further development and readjudication a claim previously decided by the RO and properly appealed to the BVA ..., an expression of disagreement with a subsequent RO readjudieation on remand cannot be an NOD.

The appellant filed an NOD in January 1988, disagreeing with the RO’s denial of his claim for a left eye disability. He also, pointing to the circumstances of his injury and an “incompetent” eye examination, asserted in the NOD that he should have been receiving compensation since his discharge, thus calling into question the correctness of the 1946 denial of his claim. In 1990 the BVA found that the appellant had shown that his left eye disability was aggravated by service and returned the ease to the RO to assign a disability rating. The Board, responding to the assertion of an earlier effective date, also found no CUE as to the 1946 RO decision. CUE, of course, was the only vehicle by which a 1946 date could be assigned.

The BVA’s action in 1990 was not a final action with respect to the appellant’s appeal initiated by the January 1988 NOD; it was a final action only as to one element. The July 1990 RO decision which adjudicated the other elements was part and parcel of the case which originated when the appellant filed his request for disability benefits in February 1987. The NOD filed in 1990 merely sought a full and complete adjudication of that case. Appellate review of the appellant’s claim for left eye disability was clearly initiated in January 1988 when he filed an NOD. Because the NOD was filed prior to November 1988, this Court does not have jurisdiction to review the March 3, 1992, BVA decision.

III. CONCLUSION

The appeal is DISMISSED.