Disability Claims from the Two Wars

I suggest that veterans read Paul Sullivan's comments. The magnitude of new disabled vets is something that us older combat vets thought we wold not see in our lifetimes. The battles that they and all previous disabled veterans face back here in the USA is the reason behind this Blog.


Obama Could Issue an Executive Order to End the Wars Tomorrow (Yes, It's That Simple)

By Nora Eisenberg, AlterNet. Posted January 29, 2009.

In a wide-ranging interview, veteran Paul Sullivan discusses Bush, Obama and the legacies of the Gulf War.


Paul Sullivan is a veteran of the 1991 Gulf War, serving in Saudi Arabia, Kuwait and Iraq as a Cavalry Scout with the Army's 1st Armored Division.

As executive director of the National Gulf War Resource Center from 1997 to 2000, he advocated for the passage of the Persian Gulf Veterans Act of 1998, which expanded health care and disability benefits for Gulf War veterans. From 2000 to 2006, he was Veterans Affairs project manager, leading a team that produced reports related to the Gulf War, Iraq war and Afghanistan war.

Two days after the inauguration, Paul spoke with me about a number of topics, including: the lies, drugs and poisons involved in the Gulf War and its current sequels; the suicide epidemic among Iraq and Afghanistan war veterans; the rash of homicides around military bases; the need for a truth commission; skewed research on Gulf War illness at VA; signs of conspiracy and subterfuge; the legacies of Bush 41 and Bush 43; the first days of Barack Obama; and his hopes for Michelle Obama as a true friend of veterans and veterans' families.

Nora Eisenberg: You've been involved with veterans' issues and rights for close to two decades -- as a veteran and advocate for veterans. Why have you devoted your life to this?

Paul Sullivan: Most people don't know that under a little-noticed 1991 law, the Gulf War began on Aug. 2, 1990, and it continues through today. The devastation that began with the bombing of Iraq on Jan. 17, 1991, continues through today. … Out of 700,000 Gulf War veterans, 290,000 filed disability claims against VA. VA also reports that 250,000 Gulf War veterans sought medical care at VA hospitals.

The Gulf War continues as the new Iraq and Afghanistan wars. VA reports an additional 330,000 Iraq and Afghanistan war veterans have already filed disability claims against VA, and 400,000 have already been treated at VA hospitals. That's a grand total of 620,000 disability claims and 650,000 veteran patients.

Of the 1.83 million service members deployed to the two [Iraq and Afghanistan] war zones … 400,000 became unexpected patients treated at VA hospitals and clinics. Of the 400,000 patients, 178,000 are diagnosed with a mental-health condition, including 105,000 diagnosed with PTSD. A shocking 7,400 Iraq and Afghanistan war veterans are diagnosed with drug dependence.

See Full article at: Alternet
http://www.alternet.org/waroniraq/123015/obama_could_issue_an_executive_order_to_end_the_wars_tomorrow_(yes,_it%27s_that_simple)/?page=entire

Apollo v. Peake, No. 2008-7138

Appealing to the FedCir is not guaranteed, you have to present a issue which the FedCir has jurisdiction over. This is important because a large number of appeal are denied because they have not been presented so that the FedCir can address the issues. Part of the confusion may be from the fact that the FedCir does address issues that appear to be facts of the case, but this occurs only after they have stated that the main issue raised was within their jurisdiction.

Bottom line, pro se vets needs to make sure that the main issue you raise is within the jurisidiction of the FedCir. This is not easy to do, we do encourage vets to try very hard to obtain an attorney to represent your interest.


When you assert a Constitutional violation it must be more than in name only. As the FedCir found in this case, "First, he asserts that the Veterans Court’s denial of his petition for a writ of mandamus violated his constitutional rights, but he fails to show how the denial of the petition violated the Constitution. We do not have jurisdiction to hear such an unsupported assertion of a constitutional violation."

This claim is informative as the FedCir also sets forth the three[3] conditions that must be satisfied in order to grant a writ of mandamus.
A court may issue a writ of mandamus only if three conditions are satisfied: (1) the party seeking issuance of the writ must have no other adequate means to obtain the relief he desires; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) the court, in its discretion, must be convinced that the circumstances warrant issuance of the writ. See Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380-81 (2004); Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 426 U.S. 394, 403 (1976).

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7138
JOSE G. APOLLO, SR.
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Jose G. Apollo, Sr., of Washington, DC, pro se.
Austin M. Fulk, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director. Of counsel was Phyllis Jo Baunach, Trial Attorney.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Mary J. Schoelen
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7138
JOSE G. APOLLO, SR.,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D. Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims
in 08-1029, Judge Mary J. Schoelen.
___________________________
DECIDED: January 9, 2009
___________________________
Before RADER, FRIEDMAN and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Jose G. Apollo, Sr., appeals from an order of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying his petition for a writ of mandamus. We affirm.
2008-7138 2
BACKGROUND
Mr. Apollo served in the United States Marine Corps and Navy from 1976 to 1982. In 1983, the Department of Veterans Affairs (“DVA”) granted Mr. Apollo a disability rating for service-connected hypertension. Mr. Apollo subsequently applied for vocational rehabilitation. He was placed in a vocational training program from 1992 to 1994, when his training was interrupted because of his poor academic progress. Mr. Apollo subsequently reapplied for vocational rehabilitation. In April 1995, the DVA regional office issued a decision terminating Mr. Apollo’s rehabilitation benefits because of his failure to cooperate with a program psychologist and because the 12-year time limit on benefits had expired. Mr. Apollo again reapplied for benefits in 2000, and the regional office again denied his request.
In 2002, Mr. Apollo appealed the 1995 and 2000 regional office decisions to the Board of Veterans’ Appeals. The Board found that the regional office’s 1995 denial of benefits became final because Mr. Apollo failed to file a timely appeal from the decision, and it therefore refused to address his arguments regarding that denial. Mr. Apollo took an appeal from the Board’s decision to the Veterans Court. On appeal, the Veterans Court held in a July 15, 2005, order that the regional office’s 1995 decision did not become final because the regional office failed to issue the required Statement of the Case. The Veterans Court therefore vacated the Board’s decision and remanded for issuance of an appropriate Statement of the Case.
The regional office issued a Statement of the Case in July 2007, and in September 2007 Mr. Apollo filed a new appeal with the Board regarding his 1995 termination of rehabilitation benefits. In the interim, however, the regional office

2008-7138 3

awarded Mr. Apollo entitlement to vocational rehabilitation benefits retroactive to June 1995. Accordingly, in a February 14, 2008, decision, the Board dismissed as moot Mr. Apollo’s appeal challenging the termination of his benefits. The Board further explained that any disagreement as to the amount of his reimbursement would represent a separate issue that Mr. Apollo could raise with the regional office and appeal to the Board.
On April 2, 2008, Mr. Apollo filed a petition with the Veterans Court seeking extraordinary relief in the nature of a writ of mandamus. He sought an order from the court granting him additional reimbursement for vocational rehabilitation expenses that he had incurred since June 1995. Specifically, he claimed that the $21,000 in rehabilitation expenses that he received from the DVA was $59,000 less than the amount to which he was entitled. On May 30, 2008, the Veterans Court denied Mr. Apollo’s mandamus petition because he had failed to demonstrate that he lacked other adequate means to obtain the relief he desired. Mr. Apollo then petitioned for review by this court.

DISCUSSION
Mr. Apollo contends that the Veterans Court erred in denying his petition for a writ of mandamus. We review the denial of a petition for a writ of mandamus by the Veterans Court for abuse of discretion. Lamb v. Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002). We find no abuse of discretion in this case.
A court may issue a writ of mandamus only if three conditions are satisfied: (1) the party seeking issuance of the writ must have no other adequate means to obtain the relief he desires; (2) the petitioner must demonstrate a clear and indisputable right to

2008-7138 4

the writ; and (3) the court, in its discretion, must be convinced that the circumstances warrant issuance of the writ. See Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380-81 (2004); Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 426 U.S. 394, 403 (1976).
In its order denying Mr. Apollo’s mandamus petition, the Veterans Court explained that any dispute as to the amount of reimbursement must be taken up with the regional office in the first instance. The court explained that Mr. Apollo had failed to show that he raised the issue of the amount of reimbursement with the regional office or that he appealed the issue to the Board. The court further noted that if Mr. Apollo believes that in its February 2008 decision the Board should have awarded him additional reimbursement, he can make that argument in his pending appeal to the Veterans Court. Thus, the court concluded that Mr. Apollo did not establish that he lacked alternative means to obtain the relief he sought, and it therefore denied his petition for a writ of mandamus. The writ of mandamus is not intended to be used as a “substitute for the regular appeals process,” Cheney, 542 U.S. at 381, which is what the court found Mr. Apollo was attempting to do. We agree with the court’s legal analysis and therefore uphold its denial of the petition as within its discretion.

Mr. Apollo further contends that the Veterans Court violated 18 U.S.C. § 4, the provision of the Criminal Code dealing with misprision of felony. Mr. Apollo alleges that the DVA forged his signature and falsified the date on his application for vocational rehabilitation. He further asserts that his case manager tampered with the eligibility termination date provided on a report from a counseling psychologist. Mr. Apollo argues that the Veterans Court knew of and actively concealed the alleged forgeries, in

2008-7138 5

violation of 18 U.S.C. § 4. However, Mr. Apollo did not make any forgery claims in his mandamus petition, and he does not provide any evidence that the Veterans Court was even aware of—much less intentionally concealed—any alleged falsification by the DVA. Moreover, the asserted violation of a criminal statute ordinarily does not confer a private right of action on a private plaintiff merely upon a claim that he was affected by the violation. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 190 (1994); Cort v. Ash, 422 U.S. 66, 79 (1975). We are aware of no authority for the proposition that an alleged violation of the federal misprision of felony statute gives rise to a private right of action. Mr. Apollo’s argument that the Veterans Court improperly disregarded his claim to relief under 18 U.S.C. § 4 is therefore without merit. Mr. Apollo also apparently suggests that inconsistencies surrounding his termination date render the Veterans Court’s July 2005 order invalid. Mr. Apollo did not raise that issue below, however, and he cannot present that argument for the first time on appeal.
Finally, Mr. Apollo alleges that the Veterans Court wrongly decided or violated numerous provisions of the U.S. Constitution, including the Full Faith and Credit Clause, the Due Process Clauses, and the Equal Protection Clause. Although we have jurisdiction over free-standing constitutional claims, see In re Bailey, 182 F.3d 860, 865 (Fed. Cir. 1999), an appellant’s mere characterization of a question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack. Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). Mr. Apollo’s constitutional challenges focus on two issues. First, he asserts that the Veterans Court’s denial of his petition for a writ of mandamus violated his constitutional rights, but he fails to show how the denial of the

2008-7138 6

petition violated the Constitution. We do not have jurisdiction to hear such an unsupported assertion of a constitutional violation. The thrust of Mr. Apollo’s claim is that the Veterans Court’s decision was incorrect, and a simple error in a court decision does not ipso facto constitute a constitutional violation. Second, Mr. Apollo argues that the Veterans Court failed to address constitutional claims that he raised in his mandamus petition below. We have jurisdiction to decide constitutional issues decided by or presented to the Veterans Court. However, Mr. Apollo made no explicit constitutional claim in his petition for a writ of mandamus, and the Veterans Court did not decide any constitutional issues when it denied the petition. Rather, the court concluded that Mr. Apollo failed to satisfy the requirements for the issuance of a writ, and that conclusion was well founded.
To the extent that Mr. Apollo contends that he was unconstitutionally denied vocational rehabilitation benefits without the benefit of due process procedures, his argument is without merit. Although the DVA initially terminated Mr. Apollo’s benefits, it subsequently awarded him rehabilitation services retroactively. Mr. Apollo disputes the amount of reimbursement that he received, but he has been afforded the opportunity to contest the reimbursement level before the regional office and the Board in the case currently pending on appeal before the Veterans Court. He has thus not been deprived of due process by being denied an opportunity to have his claim addressed administratively and judicially. See Mansfield v. Peake, 525 F.3d 1312, 1319 (Fed. Cir. 2008).
For these reasons, we affirm the Veterans Court’s denial of Mr. Apollo’s petition for a writ of mandamus.

Non-Attorney comments on Barrett v. Nicholson, Pro Veteran issues

Barrett v. Nicholson, No. 05-7113 (Decided October 2006)

The FedCir’s tone and findings in Barrett are important. When you add Barrett to Comer one gets a better feel for how the FedCir views the VA claims process. There is a lot of important stuff to be found here.

One of the first deals with a reversal where VA refused to provide all records in its possession, and to develop additional facts, relevant to Barrett’s equitable tolling motion. The\is failure caused the FedCir to order a reversal “Because the Veterans Court erred by declining to require the Department of Veterans Affairs (“DVA”) to provide all records in its possession, and to develop additional facts, relevant to Barrett’s equitable tolling motion, we reverse and remand.”

The FedCir also addressed the “considerations surrounding the government’s superior access to information and its obligation in veteran’s cases.”

”First, as the Veterans Court has long recognized and as this case demonstrates, the full breadth of the information possessed by the DVA and the content of a veteran’s claim file is generally not known to a veteran, if ever, until after the record on appeal has been designated and transmitted under the court’s Rules 10 and 11. See, e.g., Parmley v. Derwinski, 2 Vet. App. 383, 384 (1992); see also U.S. Vet. App. R. 10, 11. For this reason, the Veterans Court “relies on counsel for the Secretary to act as an impartial officer of the Court when designating the record on appeal.” See Zo v. Brown, 4 Vet. App. 440, 443 (1993) (citing Parmley, 2 Vet. App. at 384). It is, therefore, the government’s responsibility under Rules 10 and 11 to provide “all material in the record of proceedings before the Secretary and the Board that was relied upon by the Board . . . and any other material from the record which the Secretary considers relevant.” U.S. Vet. App. R. 10 (emphasis added).”

The FedCir next addressed the disadvantage that veterans face, stating “Because a veteran’s informational disadvantage is at least as great, if not greater, at the jurisdictional stage of his case, it would be inconsistent to allow the government to withhold records relevant to jurisdiction, thereby restricting his very access to judicial review, while not so allowing with respect to records relevant to the merits of the case. Accordingly, just as the government must provide the Veterans Court (and the veteran) all records in its possession relevant to the merits of a case, so too must it provide all records in its possession relevant to contested jurisdictional issues.

The FedCir also addressed “systemic fariness” and “appearance of fairness” in the pro veterans VA system, stating ” Congress’ intent in crafting the veterans benefits system is to award “entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign.” Bailey, 160 F.3d at 1370 (Michel, J., concurring); see also Jacquay v. Principi, 304 F.3d 1276, 1286 (Fed. Cir. 2002) (en banc); Hensley v. West, 212 F.3d 1255, 1262 (Fed. Cir. 2000). “[I]n the context of veterans' benefits where the system of awarding compensation is so uniquely pro-claimant, the importance of systemic fairness and the appearance of fairness carries great weight.” Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Indeed, it was for the purpose of ensuring that veterans were treated fairly by the government and to see that all veterans entitled to benefits received them that Congress provided for judicial review through the Veterans’ Judicial Review Act (“VJRA”) of 1988 (codified as amended at 38 U.S.C. §§ 7251-7298 (2000)).

The FedCir then ties essential fairness to the fact that ”The government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them. Cf. Campbell, 365 U.S. at 96 (citations omitted).”

Given the FedCir’s strong statement here and their re-statements in Comer two years later, it appears that they are sending a strong message to the VA. We hope that the VA is listening.


The FedCir cite to Parmley stating: “Parmley, plainly establish that (1) the entirety of the Secretary’s duties do not end once the board renders a decision, and (2) governmental “assistance” during the judicial review process that ultimately assists the veteran in obtaining benefits to which he is entitled is not inconsistent with section 5103A.
We find that this similar to the Congressional awareness, cited by the Veterans Court, that the General Counsel's function of "represent[ing] the Department", 38 U.S.C. § 7263(a), includes a general obligation "to also represent the veteran[,] . . . to look at all sides of the case", "to see that the veteran gets what he or she is entitled to", to confess error and suggest remand where indicated, to attempt to "settle cases", See Nominations of Jo Ann Krukar Webb, Sylvia Chavez Long, James A. Endicott, Jr., and Allen B. Clark, Jr., for positions in the Department of Veterans Affairs: Hearing Before the Senate Comm. on Veterans' Affairs, 102d Cong., 1st Sess. 12-19 ( 1991) (testimony of James A. Endicott, Jr., nominee to be VA General Counsel, in response to questions from Chairman Cranston and Sen. Thurmond )( "Moreover, there has been a Congressional awareness that the General Counsel's function of "represent[ing] the Department", 38 U.S.C. § 7263(a), includes a general obligation "to also represent the veteran[,] . . . to look at all sides of the case", "to see that the veteran gets what he or she is entitled to", to confess error and suggest remand where indicated, to attempt to "settle cases", and, generally, to help "ensure that [VA] applies Court-based principles and [achieves] consistency" between VA and Board application of Court-based principles.”)

The Veterans Court has addressed such duties before the Board and RO, see Manio v. Derwinski, No. 90-86 (Submitted October 23, 1990 Decided February 15, 1991)
The Secretary contends here that "excessive delay has prejudiced [the Government's] ability to mount a defense" (Br. at 15), but that argument rings hollow because the Secretary does not defend claims. See 38 C.F.R. § 3.103(a) (1990). Rather than defending against the claims of veterans, the Secretary has a statutory duty to assist claimants during the course of the ex parte and non-adversarial claims resolution process at the regional office and before the BVA. See 38 U.S.C. § 3007(a) (1988 ). Moreover, "[i]t is the obligation of VA . . . to render a decision which grants [the veteran] every benefit that can be supported in law while protecting the interests of the Government." 38 C.F.R. § 3.103(a)



United States Court of Appeals for the Federal Circuit
05-7113
LARRY D. BARRETT,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
James R. Barney, Finnegan, Henderson, Farabow, Garrrett & Dunner, L.L.P., of
Washington, D.C., argued for claimant-appellant. With him on the brief was Mark R. Lippman,The Veterans Law Group, of La Jolla, California.

David B. Stinson, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and James M. Kinsella, Deputy Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Y. Ken Lee, Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel was Richard J. Hipolit, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims
Retired Judge Jonathan R. Steinberg.United States Court of Appeals for the Federal Circuit
05-7113
LARRY D. BARRETT,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
__________________________
DECIDED: October 11, 2006
__________________________
Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and MAYER, Circuit Judge.

Opinion for the court filed by Circuit Judge MAYER. Concurring in the judgment opinion filed by Senior Circuit Judge FRIEDMAN.

MAYER, Circuit Judge.
Larry D. Barrett appeals the judgment of the United States Court of Appeals for
Veterans Claims, dismissing his appeal for lack of jurisdiction for failure to establish entitlement to equitable tolling of the 120-day period to file a notice of appeal under 38.U.S.C. § 7266. *Barrett v. Principi, No. 02-2382, 2005 U.S. Vet. App. Claims LEXIS 45 (Vet. App. Jan. 26, 2005) (“Barrett III”). Because the Veterans Court erred by declining to require the Department of Veterans Affairs (“DVA”) to provide all records in its possession, and to develop additional facts, relevant to Barrett’s equitable tolling motion, we reverse and remand.

Background
Barrett served on active duty in the Army from July 1970 to January 1972, and in
the Navy from February 1975 to July 1976. He alleges that soon after returning from his tour of duty in Vietnam he began to experience emotional problems, but that the symptoms did not become severe until 1982. In 1997, Barrett was diagnosed with post-traumatic stress disorder (“PTSD”) and panic disorder. He claims that by 2002 he suffered from flashbacks and hallucinations.
Barrett sought service connection for his PTSD and a hand injury; both claims
were denied by the Regional Office and the Board of Veterans Appeals (“board”). On August 15, 2002, the board mailed its decision affirming the denial of benefits to Barrett.
Barrett appealed the board’s decision to the Veterans Court on December 21, 2002, eight days beyond the 120-day period for appeal. The government moved to dismiss for lack of jurisdiction. On May 23, 2003, Barrett responded that he was prevented from filing a timely notice of appeal because he had been incapacitated by mental illness,
*
38 U.S.C. § 7266(a) provides:
In order to obtain review by the Court of Appeals for Veterans Claims of a
final decision of the Board of Veterans’ Appeals, a person adversely
affected by such decision shall file a notice of appeal with the Court within
120 days after the date on which notice of the decision is mailed pursuant
to section 7104(e) of this title.

05-7113 2.

and that the Veterans Court should therefore toll the running of the appeal period. The court dismissed the appeal for lack of jurisdiction, stating that “ill health has not been adopted as a basis for such tolling.” Barrett v. Principi, No. 02-2382, 2003 U.S. Vet.App. Claims LEXIS 417 (Vet. App. June 5, 2003) (“Barrett I”). On appeal, we reversed the Veterans Court, holding that “mental illness can justify equitable tolling of section 7266(a) under some circumstances,” Barrett v. Principi, 363 F.3d 1316, 1317 (Fed. Cir. 2004) (“Barrett II”), and remanded for application of this standard to Barrett’s case.
On remand, the Veterans Court decided that it required “supplemental briefing
(attaching any additional relevant evidence) from the parties in support of their
positions.” Barrett v. Principi, No. 02-2382, 2004 U.S. App. Vet. Claims LEXIS 476, at *6 (Vet. App. July 16, 2004) (“Remand Order”). It ordered Barrett to file a response within 30 days establishing that he met the standard set forth in Barrett II or, alternatively, that he wished to rely on his May 23, 2003, response. Remand Order at *6-7. It further ordered the government to reply to his response. Id. at *7.
Barrett moved to stay proceedings pending the outcome of Jones v. Principi,
U.S. Vet. App. No. 03-1996, then before the Veterans Court on a motion for remand to the DVA for record development on the issue of mental incapacity for the purpose of equitable tolling. On August 13, 2004, the Veterans Court deferred consideration of Barrett’s motion and ordered him to file his response within seven days. Barrett responded, relying on the arguments and evidence presented in his May 23, 2003, submission.
In the government’s response, it attached and made arguments based on several
medical records dating from the judicial-appeal period, August 15 to December 21,

05-7113 3.

2002, obtained from Barrett’s medical treatment facility, the Birmingham Veterans Affairs Medical Center. Among these records are an August 21, 2002, medical progress note and other documentation stating that Barrett failed to report for medical appointments on December 18 and 30, 2002. With respect to these records, the Secretary states that the DVA “provided the Veterans Court with copies of DVA medical records reflecting the diagnosis and consequences of Mr. Barrett’s psychiatric disability.” Gov’t Br. at 19 n.8.

Before the Veterans Court, Barrett’s counsel stated, and the government does not contest, that these records were previously unknown to him.
It is unclear from the record before us if the government sought all records relevant to the issue of mental incapacity bearing on equitable tolling. It is also unclear if it provided the Veterans Court with all relevant records that it obtained, or selectively submitted only portions.

Barrett filed a response to the government’s new evidence, and the Veterans
Court considered it in assessing his equitable tolling motion. Barrett III at *10-11.
However, in view of its decision in Jones v. Principi, 18 Vet. App. 500 (2004) (finding that the Secretary’s duty to assist under 38 U.S.C. § 5103A does not extend to assistance in developing the record for an equitable tolling motion), appeal dismissed for lack of jurisdiction, 431 F.3d 1353 (Fed. Cir. 2005), the Veterans Court dismissed Barrett’s motion for a stay of proceedings as moot, and declined to remand his case for further record development on the equitable tolling issue. Barrett III at *12. The court found that he had not met his burden under Barrett II, 363 Fed. Cir. at 1321, and dismissed the case for lack of jurisdiction. On appeal, Barrett argues that the Veterans Court erred by refusing a limited remand in order for the Secretary to assist in further developing the record on the equitable tolling issue. We have jurisdiction under 38 U.S.C. § 7292(a).

Discussion
Our review is limited to questions of law, see 38 U.S.C. § 7292(d)(2), and it is de
novo, see 38 U.S.C. § 7292(a); see also Bailey v. West, 160 F.3d 1360, 1362 (Fed. Cir. 1998) (en banc) (citations omitted). This case presents a narrow question of law: what duty does the DVA have in developing the record before the Veterans Court on the issue of equitable tolling?
To begin, we recognize that Barrett bears the ultimate burden of establishing the
Veterans Court’s jurisdiction by a preponderance of the evidence. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 188-89 (1936); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). However, this does not mean that the DVA has no duty to assist the court in determining its jurisdiction. Indeed, our holding in Barrett II acknowledged as much: “Furthermore, the [DVA], which employs a host of medical professionals, is uniquely qualified to facilitate the diagnosis of troubled claimants should such allegations arise.” 363 F.3d at 1320. In fact, when the Veterans Court determines that it needs additional information to decide jurisdictional issues, its general practice is to require the government (as well as the veteran) to provide the relevant records in its possession and, where necessary, to develop new facts that go exclusively to the jurisdictional question.
For example, in this case, the Veterans Court ordered the government to submit
supplemental briefing on the equitable tolling issue and to attach “any additional
relevant evidence.” Remand Order at *6. The government complied, at least in part, by seeking out, obtaining, and submitting the medical records and other documents discussed above. Similarly, in Claiborne v. Nicholson, 19 Vet. App. 181, 183 (2005), where equitable tolling based on ill health was at issue, the court ordered supplemental briefing from the government and required it to attach “any additional relevant evidence.”
In Sthele v. Principi, 19 Vet. App. 11, 13 (2004), the issue was equitable tolling
based on the Secretary’s alleged failure to mail a copy of the board’s final decision to the veteran. While recognizing that a presumption of regularity applied to the government’s mailings and that the veteran bore the ultimate burden of establishing jurisdiction, id. at 16, the Veterans Court required the government to develop jurisdictional facts. Indeed, it ordered the Chairman of the Board of Veterans Appeals to submit a declaration “detailing the Board’s current practices regarding date-stamping and mailing of Board decisions and those practices employed at the time the appellant’s copy of the [board’s final decision] was date-stamped and mailed.” Id. at 13. The government complied by submitting a declaration from the Senior Deputy Vice Chairman of the Board. Id. at 14. After hearing argument on the equitable tolling issue, the Veterans Court decided that it required more evidence, and ordered a further filing from the government. Id. In that filing, the government submitted at least four additional declarations pertaining to the DVA’s date-stamping and mailroom procedures.
Id. at 15-16. The Secretary’s declarations and filings ultimately assisted the veteran in rebutting the presumption of regularity. See id. at 17-18 (discussing the jurisdictional evidence, including the government’s declarations, and noting that, “[t]he evidence before the Court in this case is somewhat perplexing and reflects multiple irregularities in VA’s handling of the appellant’s case that, coupled with the appellant’s assertion of nonreceipt, constitute the clear evidence that is necessary to rebut the assumed presumption of regularity”). On the ultimate issue, the Veterans Court found that the veteran had met his burden of establishing entitlement to equitable tolling, and accepted
jurisdiction over the merits. Id. at 20.
These cases place a duty on the government to come forward with jurisdictional
evidence in its possession and to develop additional facts uniquely within its
competence, even though not part of the veteran’s claim file.

This “comports with the general rule that where evidence required to prove a fact is peculiarly within the knowledge and competence of one of the parties, fairness requires that party to bear the burden of coming forward.” Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994) (citing Campbell v. United States, 365 U.S. 85, 96 (1961)).

As established by Reynolds v. Army & Air Force Exchange Service, 846 F.2d
746, 748 (Fed. Cir. 1988), we require that “the party asserting jurisdiction must be given an opportunity to be heard before dismissal is ordered.” See also Local 336, Am. Fed’n of Musicians v. Bonatz, 475 F.2d 433, 437 (3d Cir. 1973); Harmon v. Superior Court, 307 F.2d 796, 797 (9th Cir. 1961). Outside of the veterans context, where jurisdictional facts are contested, the general rule is that “the party asserting jurisdiction be permitted discovery of facts demonstrating jurisdiction, at least where the facts are peculiarly within the knowledge of the opposing party.” Kamen v. Am. Tel. & Tel., 791 F.2d 1006, 1011 (2d Cir. 1986) (citations omitted); see also Majd-Pour v. Georgiana Cmty. Hosp., Inc., 724 F.2d 901, 903 (11th Cir. 1984); Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir.), cert. denied, 454 U.S. 897 (1981); Inv. Props. Int’l, Ltd. v. IOS, Ltd., 459 F.2d 705,

05-7113 7.707-08

(2d Cir. 1972). Here, however, because we believe the Veterans Court’s current procedures for determining contested jurisdictional issues are sufficient, allowing Barrett to conduct limited discovery of evidence bearing on equitable tolling should not be necessary.
**
When applied sympathetically and with full recognition of the government’s superior access to a veteran’s claim file and the facts bearing on
jurisdiction, they provide the veteran with the requisite opportunity to be heard as
contemplated by Reynolds.

We next address considerations surrounding the government’s superior access to information and its obligation in veteran’s cases. This will assist in defining the contours of the relief to which Barrett is entitled.


First, as the Veterans Court has long recognized and as this case demonstrates, the full breadth of the information possessed by the DVA and the content of a veteran’s claim file is generally not known to a veteran, if ever, until after the record on appeal has been designated and transmitted under the court’s Rules 10 and 11. See, e.g., Parmley v. Derwinski, 2 Vet. App. 383, 384 (1992); see also U.S. Vet. App. R. 10, 11. For this reason, the Veterans Court “relies on counsel for the Secretary to act as an impartial officer of the Court when designating the record on appeal.” See Zo v. Brown, 4 Vet. App. 440, 443 (1993) (citing Parmley, 2 Vet. App. at 384). It is, therefore, the government’s responsibility under Rules 10 and 11 to provide “all material in the record of proceedings before the Secretary and the Board that was relied upon by the Board . . . and any other material from the record which the Secretary considers relevant.” U.S. Vet. App. R. 10 (emphasis added).

Where there is a jurisdictional dispute, however, designation and transmission of the record does not occur until after the Veterans Court has made its jurisdictional determination and taken jurisdiction over the merits of the case. See, e.g., Sthele, 19 Vet. App. at 20; Bobbitt v. Principi, 17 Vet.App. 547, 554 (2004). Because a veteran’s informational disadvantage is at least as great, if not greater, at the jurisdictional stage of his case, it would be inconsistent to allow the government to withhold records relevant to jurisdiction, thereby restricting his very access to judicial review, while not so allowing with respect to records relevant to the merits of the case. Accordingly, just as the government must provide the Veterans Court (and the veteran) all records in its possession relevant to the merits of a case, so too must it provide all records in its possession relevant to contested jurisdictional issues.

Second, because the government maintains the records in a veteran’s claim file
and has the readiest access to DVA personnel and knowledge about its internal
operating procedures, it is necessary, as exemplified by Sthele, to place some duty on the government to develop relevant facts in order to clarify the jurisdictional record. Cf. Jensen, 19 F.3d at 1417. Here the government’s access to medical records of which Barrett’s counsel was not aware, its history of treating and working with Barrett, and its access to medical staff that is supremely qualified to make determinations of mental incapacity, put it in a unique position to know precisely what further medical evidence will clarify the jurisdictional record.

When we consider the context in which judicial review occurs, it becomes even
more compelling to assign the government this role. Congress’ intent in crafting the veterans benefits system is to award “entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign.” Bailey, 160 F.3d at 1370 (Michel, J., concurring); see also Jacquay v. Principi, 304 F.3d 1276, 1286 (Fed. Cir. 2002) (en banc); Hensley v. West, 212 F.3d 1255, 1262 (Fed. Cir. 2000). “[I]n the context of veterans' benefits where the system of awarding compensation is so uniquely pro-claimant, the importance of systemic fairness and the appearance of fairness carries great weight.” Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Indeed, it was for the purpose of ensuring that veterans were treated fairly by the government and to see that all veterans entitled to benefits received them that Congress provided for judicial review through the Veterans’ Judicial Review Act (“VJRA”) of 1988 (codified as amended at 38 U.S.C. §§ 7251-7298 (2000)).

The government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them. Cf. Campbell, 365 U.S. at 96 (citations omitted).

Accordingly, when, as here, a veteran alleges facts to show entitlement to
equitable tolling, thereby meeting his threshold burden under McNutt, see 298 U.S. at 189, and jurisdiction is called into question, consistent with its duty to ensure the reality and appearance of systemic fairness and the rule in Jensen, the government must assist the court by providing and, where necessary, procuring further evidence helpful in deciding jurisdiction, e.g., declarations, new medical examinations, and other forms of evidence as appropriate. Cf. Adams v. Principi, 256 F.3d 1318, 1321-22 (Fed. Cir. 2001) (affirming the Veterans Court’s remand to the board for clarification as to the import of evidence, holding that “clarification . . . can take the form of an explanation from [the examining doctor] of his opinion, or if necessary supplemental medical evidence”).

The government shall make these submissions on its own initiative, upon request of the veteran, or as required by the Veterans Court. If a veteran makes such a request, the government may advert to the court for a determination that it is reasonably necessary to deciding the jurisdictional issues before it. Cf. 38 U.S.C. § 5103A(a)(2) (establishing a standard of reasonableness for determining when the Secretary is required to provide assistance at the agency level under its duty to assist in developing claims for benefits).

Here Barrett specifically requested a medical examination by DVA doctors to
clarify the nature of his mental incapacity during the appeals period. Because such an exam will plainly assist in clarifying his entitlement to equitable tolling, is consistent with the kinds of evidence uniquely within the knowledge and competence of the government as contemplated by Jensen and Adams, and ensures the reality and appearance of systemic fairness, the Secretary shall provide Barrett with his requested medical examination, as well as any other assistance deemed reasonably necessary by the Veterans Court.

The Secretary must provide the Veterans Court with any additional
records in its possession that are relevant to the equitable tolling issue. Moreover, both Barrett and the Secretary should voluntarily provide the Veterans Court with any other relevant evidence now in their possession or later obtained.

The government raises two principal objections, both of which are without merit.
First, it argues that because section 5103A relates to its duty to provide assistance “necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary,” it is not required by that section to assist Barrett in developing evidence that relates to jurisdictional issues. Because section 5103A does not provide the basis for our holding, this argument is of no moment. It is only relevant that our decision is not inconsistent with section 5103A. In Adams, while we rejected the Secretary’s duty to assist (then codified at 38 U.S.C. § 5107(a) (2000)) as the appropriate basis for a Veterans Court’s remand for “clarification as to the import of the evidence,” we found that the remand was proper under its 38 U.S.C. § 7252(a) remand power. 256 F.3d at 1321-22. Moreover, we stated, “While it may be that further proceedings will result in a ruling in Mr. Adams’s favor and thus the remand will ultimately assist him in obtaining benefits, the purpose of the remand is not principally to
assist Mr. Adams to support his claim, but to clarify [the contested legal issue].” Id. at 1322. Indeed, our precedent, e.g., Santana-Venegas v. Principi, 314 F.3d 1293 (Fed. Cir. 2002); Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) (en banc), and the government’s practice before the Veterans Court, e.g., Sthele; Zo; Parmley, plainly establish that (1) the entirety of the Secretary’s duties do not end once the board renders a decision, and (2) governmental “assistance” during the judicial review process that ultimately assists the veteran in obtaining benefits to which he is entitled is not inconsistent with section 5103A.

05-7113 12.

The government also argues that the Veterans Court has no jurisdiction to grant
Barrett his requested relief. However, it is axiomatic that “a court always has jurisdiction to determine its own jurisdiction.” Rosado v. Wyman, 397 U.S. 397, 403 n.3 (1970); see also Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1331 (Fed. Cir. 2006) (en banc) (citing Cruz v. Dep’t of Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991)); Henderson v. West, 12 Vet. App. 11, 14 (1998).
In view of the Veterans Court’s authority to compel the government to produce
evidence uniquely within its knowledge and provenance relevant to clarifying
jurisdictional issues, its authority under section 7252(a) to remand as appropriate, coupled with the authority of federal courts to order limited remands to clarify and further develop issues on appeal, e.g., Yang v. McElroy, 277 F.3d 158, 162-64 (2d Cir. 2002), it has the authority to order a remand for the government to procure and provide the necessary jurisdictional evidence. However, we are mindful of the Veterans Court’s practice of also adducing the necessary jurisdictional evidence through orders rather than remands. E.g., Barrett III; Claibourne; Sthele. Therefore, we leave it to the court’s sound discretion whether an order or a remand is the more appropriate mechanism to develop the relevant jurisdictional facts and to ensure that Barrett receives the full and fair hearing on jurisdiction that he is due.

Conclusion
Accordingly, the judgment of the United States Court of Appeals for Veterans
Claims is reversed, and the case is remanded for further proceedings in accordance with this opinion.
05-7113 13.COSTS
Costs to appellant.
REVERSED AND REMANDED

Dissent
05-7113 14.United States Court of Appeals for the Federal Circuit
05-7113
LARRY D. BARRETT,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.

FRIEDMAN, Senior Circuit Judge, concurring in the judgment.
I join in the court’s judgment reversing the judgment of the United States Court of
Appeals for Veterans Claims (“Veterans Court”) and remanding the case for further proceedings. I write separately because of my concern that the court’s opinion seems to speak more broadly than is necessary to dispose of this case.
Unlike the administrative proceedings involving veterans benefits before the
Department of Veterans Affairs (“Department”), which are non-adversarial, the judicial proceedings before the Veterans Court are fully adversarial. Before that Article I court, the appellee usually is the Secretary of Veterans Affairs and ordinarily is represented by the Department’s General Counsel. The proceedings before that court, like those before other courts of the United States, are totally adversarial.
It seems anomalous, to say the least, to impose upon one of the parties in such
judicial proceedings the obligation to assist his opponent in presenting and trying to win his case. Yet that is what certain passages in the court’s opinion appear to suggest, if not require.
Thus, the court states that specified decisions of the Veterans Court “place a
duty on the government to come forward with jurisdictional evidence in its possession and to develop additional facts uniquely within its competence, even though not part of the veteran’s claim file”; that “it is necessary, as exemplified by Sthele, to place some duty on the government to develop relevant facts in order to clarify the jurisdictional record”; that “when, as here, a veteran alleges facts to show entitlement to equitable tolling, . . . and jurisdiction is called into question, consistent with its duty to ensure the reality and appearance of systemic fairness and the rule in Jensen, the government must assist the court by providing and, where necessary, procuring further evidence helpful in deciding jurisdiction, e.g., declarations, new medical examinations, and other forms of evidence as appropriate. . . . The government shall make these submissions on its own initiative, upon request of the veteran, or as required by the Veterans Court”;
and that “both Barrett and the Secretary should voluntarily provide the Veterans Court with any other relevant evidence now in their possession or later obtained.”
If these statements are intended merely to indicate the scope of the requirements the Veterans Court may impose on the Department as a litigant before it, I have no problem with them. If, however, they are read to suggest or indicate that the Department is obligated to take such action on its own, either voluntarily or in response to the veteran’s request but without any directive from the Veterans Court to do so, I find them troublesome.

Before this court provides or recognizes such a fundamental change in our
adversarial system of judicial adjudication, I would think it would require a clear and explicit expression of legislative intent to do so. It is 38 U.S.C. § 5103A that creates and describes the Secretary’s “Duty to assist claimants” “in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” 38 U.S.C. 5103A(a). I see nothing there that would require the Secretary on his own initiative to take such action. To the contrary, those provisions seem to me to address the Secretary’s duty to assist veterans only in handling their claims in the non-adversarial administrative proceedings before the Department.
When the case reaches the stage of judicial review of the Secretary’s action before the Veterans Court, however, I think the normal adversarial system prevails, so that neither side has any obligation on its own to assist its opponent in handling the case on appeal.
In sum, I think that any duty the Secretary may have to assist the veteran in
handling an appeal before the Veterans Court is limited to compliance with the court’s directives or requests, and does not also include an obligation to furnish information or provide medical assistance on his own initiative or on request of the veteran.
Although the present case involves only a narrow issue involving the Veterans Court’s jurisdiction, some language in the opinion appears to have broader and troubling implications.

References:

Based on our review of Veterans Court cases, as best illustrated by
Sthele, we find that upon pleading sufficient facts to establish jurisdiction, the Veterans Court provides for a veteran’s right to be heard on contested jurisdictional issues as follows: (1) providing an opportunity for supplemental briefing; (2) requiring the government to submit any relevant evidence in its possession relating to the contested jurisdictional issues (and requiring the veteran to make a reasonable effort to seek, obtain, and submit evidence consistent with his burden under McNutt); (3) requiring the government to supplement the jurisdictional record with relevant evidence helpful to the Veterans Court in clarifying the jurisdictional issues; (4) providing an opportunity for the parties to respond to the other’s evidentiary submissions (either through briefing or oral argument); and (5) providing an opportunity for oral argument as it deems appropriate.

Non-Attorney comments on Comer v. Peake FedCir

This Blog has been in the development stages for far too long, so given the significance of Comer v. Peake, seems like a good time to get this online.

This is a research information site and as such is not advice about any subject. What we are trying to do here is combine Google with human research to present information of interest to disabled veterans, especially those who, for whatever reason, are not represented.

It is difficult to research some issues involving veterans claims, we hope to make that easier by highlighting wording, phrases and such so that you can do your own research on the internet and court websites.

We are going to cover issues and provide insights that we have not found on other internet sites.

O.K. lets get on with it.

We found that Comer offers a number of insights of import to vets. The FedCir has answered, for now, that being represented by the DAV does not equate to being represented by an attorney. [the assistance provided by the DAV aide is not the equivalent of legal representation.]

This is good, as it allows vets to get help with their claims from VSOs and not lose VA's statutory duty to construe a veteran’s filings sympathetically as occurs when a veteran is represented by an attorney, the FedCir cited to its holding in Andrews, 421 F.3d at 1283.

Also, for the first time the FedCir has stated that the duty to sympathetically and fully construe a pro se veteran’s filings applies to the Board of Veterans’ Appeals. This is good news because now the VA will have to fully and sympathetically develop a vet’s filing at the RO and the Board. Given the ongoing nature of claims where evidence and letters and issues can be or are being raised after the initial submission, this will hopefully mean that those issues will be recognized by the Board before they adjudicate a claim. Definitely something to look for in Board decision.

Another BIG finding, in our opinion, is where the FedCir stated: “… , the VA has an “affirmative duty to assist claimants by informing [them] of the benefits available to them and assisting them in developing claims they may have.” See Jaquay, 304 F.3d at 1280. It is only reasonable to expect, therefore, that if the VA is confronted with a claimant who seeks retroactive benefits, it will inform him that he needs to file a CUE motion in order to obtain those benefits. It is troubling that the VA apparently never informed Comer that he needed to file a CUE motion, but then denied his request for retroactive benefits on the ground that he had “not specifically alleged clear and unmistakable error” in the initial RO decision.” This seems as though it might have far reaching implications, especially when taken in the context of other FedCir comments and opinions. The Veterans Court in Akles v. Derwinski addressed VA’s affirmative duty, stating that “… VA has an affirmative duty to assist the veteran in developing his claim by informing him that he may be eligible for benefits under a particular provision.” Akles v. Derwinski, 1 Vet.App. 118 (1991); see also Douglas v. Derwinski, ___ Vet.App. ___ (1992), U.S. Vet. App. No. 90-678, slip op. at 9-10; 38 U.S.C. ù 241(2) (reenacted as ù 7722(c) by Pub. L. No. 102-83, ù 2(a), 105 Stat. 378 (1991)); 38 U.S.C. ù 5107(a) (formerly ù 3007(a)).


The FedCir has restated here their position in Barrett: “The government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006).

I don’t know how many times it will take for this message of justice to sink in with the VA, but given that vets can get attorney right after a RO denial, hopefully this will be presented again and again and again, until it becomes a reality for all disabled vets. See also Cf. Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006) (stating that " 'the importance of systemic fairness and the appearance of fairness carries great weight'" within the nonadversarial veterans benefits system (quoting Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998)).

Our personal attitude, is that vets should get help as soon as possible and retain an attorney as soon as possible, because we believe that the claim system is more adversarial than not. The FedCir seems to of summed it up in their 1998 Collaro opinion, where they stated: The VA system "has changed from “a nonadversarial, ex parte, paternalistic system for adjudicating veterans’ claims,” to one in which veterans like Bailey must satisfy formal legal requirements, often without the benefit of legal counsel, before they are entitled to administrative and judicial review.” Collaro v. Department of Veterans Affairs, 136 F.3d 1304, 1309-10 (Fed. Cir. 1998).


There is a lot of important findings and insights to be found in Comer, we have but touched on but a few of the more obvious ones, so we urge vets to take note of this FedCir opinion, read it carefully and makes your own notes, also take a look at Barrett v. Nicholson, 466 F.3d(Fed. Cir. 2006).

Comer v. Peake
TAGS: 5103(a); TDIU; 38 C.F.R. § 20.202; 36 U.S.C. § 50302; CUE; read pro se pleadings sympathetically; fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits; VA has an “affirmative duty to assist claimants by informing [them] of the benefits available to them and assisting them in developing claims they may have.”; consider all issues raised either by the claimant or by the evidence of record; construe an appellant’s arguments “in a liberal manner”; pleadings drafted by pro se litigants should be held to a lesser standard; “The government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.”; duty to construe a veteran’s filings sympathetically does not necessarily apply when a veteran is represented by an attorney; the assistance provided by the DAV aide is not the equivalent of legal representation;


Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005); Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006); Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc); Forshey, 284 F.3d at 1357; Hughes v. Rowe, 449 U.S. 5, 15 (1980); Johnston v. Nicholson, 421 F.3d 1285, 1287 (Fed. Cir. 2005); McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Jaquay v. Principi, 304 F.3d 1276, 1282 (Fed. Cir. 2002); Jaquay, 304 F.3d at 1280; Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Stanley v. Principi, 283 F.3d 1350, 1355-56 (Fed. Cir 2002); Szemraj, 357 F.3d at 1373;


+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Because we conclude that the court misinterpreted Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), when it held that the duty to sympathetically and fully construe a pro se veteran’s filings did not apply to an appeal submitted to the Board of Veterans’ Appeals following a rating determination, we reverse and remand.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

As discussed above, the VA has an “affirmative duty to assist claimants by informing [them] of the benefits available to them and assisting them in developing claims they may have.” See Jaquay, 304 F.3d at 1280. It is only reasonable to expect, therefore, that if the VA is confronted with a claimant who seeks retroactive benefits, it will inform him that he needs to file a CUE motion in order to obtain those benefits. It is troubling that the VA apparently never informed Comer that he needed to file a CUE motion, but then denied his request for retroactive benefits on the ground that he had “not specifically alleged clear and unmistakable error” in the initial RO decision. See 2005 Board Decision, slip op. at 23. We decline, however, to resolve the issue of whether the VA had a duty, under section 5103(a), to notify Comer that he could only obtain retroactive benefits by filing a CUE motion because we conclude that even if the VA had such a duty, failure to fulfill it does not rise to reversible error
++++++++++++++++++++++++++++++++++++++++++++

The government reads Roberson too narrowly. This is not the first time that it has advanced an overly restrictive interpretation of Roberson, and this will not be the first time its efforts will be rejected. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (“Roberson is not limited to its particular facts and instead . . . requires, with respect to all pro se pleadings, that the VA give a sympathetic reading to the veteran’s filings.” (internal quotation marks omitted)); Szemraj, 357 F.3d at 1373 (“But our decision in Roberson is not limited to its particular facts as the Court of Appeals for Veterans Claims appears to have suggested here.”); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (The VA is required to give a sympathetic reading to a veteran’s filings even where the facts of a particular case do not “coincide” with the facts presented in Roberson).

Although Roberson involved an initial claim submitted to an RO, there is no reason that the rule it articulated should not apply with equal force to a notice of disagreement submitted after an RO’s decision.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

In his view, Roberson requires the board to consider whether a TDIU award is warranted whenever a pro se claimant seeks a higher disability rating and submits cogent evidence of unemployability, regardless of whether he states specifically that he is seeking TDIU benefits. We agree.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

in proceedings before the board, “the relationship between the veteran and the government is non-adversarial and pro-claimant,” Jaquay v. Principi, 304 F.3d 1276, 1282 (Fed. Cir. 2002). Because of the paternalistic nature of the proceedings, the board, like the RO, is required “to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (citations and internal quotation marks omitted).
++++++++++++++++++++++++++++++++++++++++++++

In other words, the VA’s duty to read an appeal submission sympathetically to ascertain all potential claims it contains is antecedent to its duty to ensure that an issue has been properly raised on appeal. Cf. Andrews, 421 F.3d at 1283 (“[T]he VA’s duty to sympathetically read a veteran’s pro se CUE motion to discern all potential claims is antecedent to a determination of whether a CUE claim has been pled with specificity.”). Indeed, 38 C.F.R. § 20.202 specifically provides that the board is required to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.” See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (“[T]he Board is required to consider all issues raised either by the claimant or by the evidence of record. Indeed, by regulation, the Board is required to construe an appellant’s arguments in a liberal manner . . . .” (citations and internal quotation marks omitted)). A liberal and sympathetic reading of appeal submissions is necessary because a pro se veteran may lack a complete understanding of the subtle differences in various forms of VA disability benefits and of the sometimes arcane terminology used to describe those benefits. See Hughes v. Rowe, 449 U.S. 5, 15 (1980) (Pleadings drafted by pro se litigants should be held to a lesser standard than those drafted by lawyers since “[a]n unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims.”); Forshey, 284 F.3d at 1357 (“[I]n situations where a party appeared pro se before the lower court, a court of appeals may appropriately be less stringent in requiring that the issue have been raised explicitly below.”).
++++++++++++++++++++++++++++++++++++++++++++

“The government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006); see also Jaquay, 304 F.3d at 1280 (“Congress has created a paternalistic veterans’ benefits system to care for those who served their country in uniform.”).
++++++++++++++++++++++++++++++++++++++++++++

The DAV was created by congressional charter “to advance the interests . . . of all wounded, injured, and disabled American veterans” and “to cooperate with the Department of Veterans Affairs . . . [in] advancing the condition, health, and interests of . . . disabled veterans.” 36 U.S.C. § 50302 (emphasis added). Since the function of aides from the DAV is to cooperate with the VA in obtaining benefits for disabled veterans, their role is fundamentally different from attorneys who represent clients in adversarial proceedings. See Stanley v. Principi, 283 F.3d 1350, 1355-56 (Fed. Cir 2002) (noting that lawyers had been historically excluded from board proceedings in order to keep the system informal and non-adversarial).
++++++++++++++++++++++++++++++++++++++++++++

We also reject the government’s contention that the board had no duty to construe Comer’s appeal sympathetically because he had assistance from an aide from a veterans’ service organization. Although we have held that the duty to construe a veteran’s filings sympathetically does not necessarily apply when a veteran is represented by an attorney, Andrews, 421 F.3d at 1283, the assistance provided by the DAV aide is not the equivalent of legal representation.
+++++++++++++++++++++++++++++++++++++++++++++

CUE claims “must be pled with specificity,” Johnston v. Nicholson, 421 F.3d 1285, 1287 (Fed. Cir. 2005), and must assert, based upon the evidence of record at the time of the original decision, an error that is “outcome determinative.” Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc).
++++++++++++++++++++++++++++++++++++++++++++++



United States Court of Appeals for the Federal Circuit 2008-7013 LEROY COMER, Claimant-Appellant, v. JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee. Edward R. Reines, Weil, Gotshal & Manges LLP, of Redwood Shores, California, argued for claimant-appellant. With him on the brief was Dion D. Messer, of Austin, Texas. Martin F. Hockey, Jr., Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC argued for respondent-appellee. With him on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, Todd M. Hughes, Jr., Deputy Director, and David F. D’Alessandris, Attorney. Of counsel on the brief were Michael J. Timininski, Deputy Assistant General Counsel, and Y. Ken Lee, Attorney, Office of the General Counsel, Department of Veterans Affairs, of Washington, DC. Appeal from: United States Court of Appeals for Veterans Claims Judge Robert N. Davis

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 2008-7013 LEROY COMER, Claimant-Appellant, v. JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee. Appeal from the United States Court of Appeals for Veterans Claims in 05-1462, Judge Robert N. Davis. ______________________ DECIDED: January 16, 2009 _______________________ Before MAYER, LOURIE, and GAJARSA, Circuit Judges. MAYER, Circuit Judge.

Leroy Comer appeals the judgment of the United States Court of Appeals for Veterans Claims which held that he had not properly raised the issue of whether he was entitled to an earlier effective date for total disability based on individual unemployability (“TDIU”) benefits. See Comer v. Nicholoson, No. 05-1462, 2007 U.S. App. Vet. Claims LEXIS 1083 (Vet. App. July 6, 2007) (“2007 Veterans Court Decision”). Because we conclude that the court misinterpreted Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), when it held that the duty to sympathetically and fully construe a pro se veteran’s filings did not apply to an appeal submitted to the Board of Veterans’ Appeals following a rating determination, we reverse and remand.

BACKGROUND From 1967 to 1970, Comer served on active duty in the United States Army. From 1968 to 1969, he served in Vietnam, where his duties included guarding an ammunition depot that was, he asserts, “under mortar attack almost every night.” On December 29, 1988, Comer, acting pro se, filed a claim for disability benefits with the Waco, Texas, Regional Office (“RO”) of the Department of Veterans Affairs (“VA”). He claimed entitlement to service connection for post-traumatic stress disorder (“PTSD”), asserting that he suffered from nightmares, depression and headaches. Although he was rated as 30 percent disabled due to PTSD, the RO declined to award him disability benefits, concluding that the evidence did not establish that his PTSD was connected to his Vietnam service. On February 26, 1999, Comer asked that his original claim for service connection for PTSD be reopened. His request to reopen was denied by the RO, but on appeal the board reversed after determining that new evidence had been submitted that was “so significant that it must be considered in order to fairly decide the merits of the claim.” In re Comer, No. 00-23550, slip op. at 4 (B.V.A. Aug. 16, 2001) (“2001 Board Decision”). In remanding the reopened claim to the RO, the board noted that Comer had been diagnosed with PTSD and that “it generally appears that the diagnosis of PTSD is related to service.” Id. at 5. On remand, the RO granted Comer service connection for his previously rated 30 percent PTSD disability. The disability rating was effective as of February 26, 1999, the

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date he filed the motion to reopen his claim. In March 2003, Comer submitted a notice of disagreement, requesting that he be assigned a disability rating higher than 30 percent and that his benefits be made retroactive to his original 1988 PTSD claim. In response, the RO increased the disability rating to 50 percent, but did not change the effective date for his benefits. In June 2003, Comer filed an appeal with the board. He sought benefits retroactive to his original 1988 PTSD claim and an increased disability rating. He filed pro se, although a representative from the Disabled American Veterans (“DAV”) organization submitted a statement on his behalf. While his appeal was pending, the VA, on May 5, 2004, gave Comer a classification and pension (“C&P”) exam. The examining physician diagnosed him with PTSD and noted that, since his last C&P exam, he had had “no stable job.” The physician further observed that Comer reported having “nightmares and flashbacks about the war once weekly” and that these nightmares increased when he was under stress. Following the C&P exam, the RO assigned Comer an increased disability rating of 70 percent and, based on his demonstrated employment problems, granted him TDIU benefits. Both the 70 percent disability rating and the TDIU award were effective as of May 5, 2004, the date of the C&P exam. Subsequently, on February 16, 2005, the board denied Comer’s request for an increased rating for the period from February 26, 1999, to May 5, 2004. It also denied his request for disability benefits prior to 1999. The board stated that it could not award benefits retroactive to Comer’s initial claim for benefits because he had “not specifically

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alleged clear and unmistakable error” in the earlier rating decision. In re Comer, No. 03-17742, slip op. at 23 (B.V.A. Feb. 16, 2005) (“2005 Board Decision”). Comer, now represented by counsel, appealed to the Veterans Court. The court held that it had no jurisdiction to consider the issue of whether Comer should have been granted TDIU benefits prior to May 5, 2004, because he had not specifically raised that issue in his notice of disagreement with the board decision. See 2007 Veterans Court Decision, slip op. at 4. The court also rejected his argument that the VA had failed to comply with its notice obligations under 38 U.S.C. § 5103(a), concluding that the VA had provided Comer with notice of “what evidence [the] VA [was] responsible for obtaining and what [Comer] could do to assist in the process.” 2007 Veterans Court Decision, slip op. at 6 (citations and internal quotation marks omitted). Comer timely appealed both issues to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292.

DISCUSSION
This court has authority to review decisions of the Veterans Court regarding the “validity of any statute or regulation or any interpretation thereof” and to “interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c); Flores v. Nicholson, 476 F.3d 1379, 1381 (Fed. Cir. 2007). We review the interpretation of statutory provisions without deference. Stanley v. Principi, 283 F.3d 1350, 1354 (Fed. Cir. 2002); Howard v. Gober, 220 F.3d 1341, 1343 (Fed. Cir. 2000). “In cases where the material facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of a veteran’s claim, we treat the application of law to undisputed fact as a question of law.” Conley v.

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Peake, 543 F.3d 1301, 1304 (Fed. Cir. 2008); see Groves v. Peake, 524 F.3d 1306, 1310 (Fed. Cir. 2008). I. Comer first argues that the Veterans Court misconstrued Roberson, 251 F.3d at 1380-84, when it held that it had no jurisdiction to consider the issue of whether he was entitled to an earlier effective date for TDIU benefits because he had not explicitly raised that issue before the board. In his view, Roberson requires the board to consider whether a TDIU award is warranted whenever a pro se claimant seeks a higher disability rating and submits cogent evidence of unemployability, regardless of whether he states specifically that he is seeking TDIU benefits. We agree. In Roberson, a veteran, who had had significant employment difficulties, filed a pro se claim seeking disability benefits, but did not specify that he was seeking a TDIU award. 251 F.3d at 1380. The RO awarded him a 70 percent disability rating for PTSD, but did not consider whether he also might be entitled to a TDIU award, which would entitle him to a 100 percent disability rating. See 38 C.F.R. § 4.16 (“Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.”). Roberson later sought to reopen his claim, asserting that the RO decision contained clear and unmistakable error (“CUE”) because the RO had failed to consider his entitlement to TDIU benefits. The Veterans Court rejected this argument, concluding that he had no right to TDIU benefits because he had not specifically requested them in his initial claim.

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On appeal, this court reversed. We concluded that although Roberson had not specifically requested TDIU benefits, the VA was required to consider his entitlement to such benefits because the record contained clear evidence of his unemployability. Roberson, 251 F.3d at 1384. We explained that “regardless of whether [a] claim is specifically labeled as a claim for TDIU,” the VA is obligated to “determine all potential claims raised by the evidence.” Id. Accordingly, the VA must consider whether a TDIU award is warranted whenever “a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability.” Id. A similar analysis applies here. Like Roberson, Comer, acting pro se, sought an increased disability rating.1 Like Roberson, Comer presented persuasive evidence of his unemployability: he has not been employed on a full-time basis since 1975 and the Veterans Court did not dispute that there was “extensive record evidence of [Comer’s] employment difficulties.” 2007 Veterans Court Decision, slip op. at 3-4. Thus, as in Roberson, the VA should have considered Comer’s entitlement to TDIU benefits. Although he did not explicitly assert the right to a TDIU award for the period from February 26, 1999, to May 5, 2004, his pro se appeal, which sought an earlier effective date and a higher disability rating for PTSD benefits was sufficient, when coupled with the evidence showing his unemployability, to raise the issue of his entitlement to an earlier effective date for his TDIU award. Simply put, under Roberson, a claim to TDIU

1 The Veterans Court has long held that an informal claim for an increased rating will be construed as a claim for the highest rating possible. See, e.g., Norris v. West, 12 Vet. App. 413, 419-20 (1999). Thus, as the board correctly acknowledged, Comer’s appeal of the RO’s rating determination was required to be construed “as an appeal for the maximum benefit allowable by law or regulation.” 2005 Board Decision, slip op. at 2.

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benefits is not a free-standing claim that must be pled with specificity; it is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (The VA is required, “regardless of the specific labels . . . claims are given in the veteran’s pleadings,” to read pro se submissions sympathetically and “to determine all potential claims raised by the evidence.” (citations and internal quotation marks omitted)). The government, however, attempts to distinguish Comer’s situation from that presented in Roberson. In its view, Roberson does not apply: (a) to appeal submissions to the board following an initial rating determination, or (b) to situations in which a veteran is assisted by a representative from a veterans’ service organization. A. The government concedes that under Roberson the RO has the duty to consider whether a claimant is entitled to a TDIU award, even when entitlement to TDIU benefits is not explicitly raised. It contends, however, that Roberson is inapplicable here because Comer “does not seek a sympathetic reading of a claim or pleading but, instead, seeks the board’s review of an issue that was not raised on appeal.” The government reads Roberson too narrowly. This is not the first time that it has advanced an overly restrictive interpretation of Roberson, and this will not be the first time its efforts will be rejected. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (“Roberson is not limited to its particular facts and instead . . . requires, with respect to all pro se pleadings, that the VA give a sympathetic reading to the veteran’s filings.” (internal quotation marks omitted)); Szemraj, 357 F.3d at 1373 (“But

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our decision in Roberson is not limited to its particular facts as the Court of Appeals for Veterans Claims appears to have suggested here.”); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (The VA is required to give a sympathetic reading to a veteran’s filings even where the facts of a particular case do not “coincide” with the facts presented in Roberson). Although Roberson involved an initial claim submitted to an RO, there is no reason that the rule it articulated should not apply with equal force to a notice of disagreement submitted after an RO’s decision. Unlike at the Veterans Court, where proceedings are more adversarial in nature, see Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002) (en banc), in proceedings before the board, “the relationship between the veteran and the government is non-adversarial and pro-claimant,” Jaquay v. Principi, 304 F.3d 1276, 1282 (Fed. Cir. 2002). Because of the paternalistic nature of the proceedings, the board, like the RO, is required “to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (citations and internal quotation marks omitted). Here, Comer appealed a 2004 RO decision that granted him an increased PTSD disability rating of 70 percent and a TDIU award, both of which were effective May 5, 2004. His appeal asserted that he was entitled to “an increased evaluation for PTSD and an earlier effective date” for his PTSD disability benefits. Although Comer did not state specifically that he was entitled to an earlier effective date for his TDIU award, his claim for an increased rating and an earlier effective date for his PTSD benefits, coupled with the persuasive and pervasive evidence in the record demonstrating his unemployability, was sufficient to raise the issue of his entitlement to an earlier effective

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date for his TDIU award as well. While the Veterans Court correctly noted that a veteran is obligated to raise an issue in a notice of disagreement if he wishes to preserve his right to assert that issue on appeal, see 2007 Veterans Court Decision, slip op. at 3-4, the determination of whether an issue has been properly raised must be made with due regard for the VA’s duty to read a veteran’s submissions sympathetically. In other words, the VA’s duty to read an appeal submission sympathetically to ascertain all potential claims it contains is antecedent to its duty to ensure that an issue has been properly raised on appeal. Cf. Andrews, 421 F.3d at 1283 (“[T]he VA’s duty to sympathetically read a veteran’s pro se CUE motion to discern all potential claims is antecedent to a determination of whether a CUE claim has been pled with specificity.”). Indeed, 38 C.F.R. § 20.202 specifically provides that the board is required to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.” See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (“[T]he Board is required to consider all issues raised either by the claimant or by the evidence of record. Indeed, by regulation, the Board is required to construe an appellant’s arguments in a liberal manner . . . .” (citations and internal quotation marks omitted)). A liberal and sympathetic reading of appeal submissions is necessary because a pro se veteran may lack a complete understanding of the subtle differences in various forms of VA disability benefits and of the sometimes arcane terminology used to describe those benefits. See Hughes v. Rowe, 449 U.S. 5, 15 (1980) (Pleadings drafted by pro se litigants should be held to a lesser standard than those drafted by lawyers since “[a]n unrepresented litigant should not be punished for his failure to
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recognize subtle factual or legal deficiencies in his claims.”); Forshey, 284 F.3d at 1357 (“[I]n situations where a party appeared pro se before the lower court, a court of appeals may appropriately be less stringent in requiring that the issue have been raised explicitly below.”). “The government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006); see also Jaquay, 304 F.3d at 1280 (“Congress has created a paternalistic veterans’ benefits system to care for those who served their country in uniform.”). The VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim, but who may be unaware of the various forms of compensation available to him. To the contrary, the VA “has the affirmative duty to assist claimants by informing veterans of the benefits available to them and assisting them in developing claims they may have.” Jaquay, 304 F.3d at 1280. The need for such assistance is particularly acute where, as here, a veteran is afflicted with a significant psychological disability at the time he files his appeal. See 2005 Board Decision, slip op. at 3 (noting that Comer’s “symptoms have included nightmares and flashbacks, sleep impairment, depression, flat affect and self isolation”). B. We also reject the government’s contention that the board had no duty to construe Comer’s appeal sympathetically because he had assistance from an aide from a veterans’ service organization. Although we have held that the duty to construe a veteran’s filings sympathetically does not necessarily apply when a veteran is

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represented by an attorney, Andrews, 421 F.3d at 1283, the assistance provided by the DAV aide is not the equivalent of legal representation. Comer filed his initial claim pro se, appealed the decision denying him benefits pro se, and filed his initial notices of disagreement pro se. It was not until after he had filed his appeal that a DAV aide, in December 2003, filed a statement on his behalf. This sort of limited assistance is insufficient to disqualify Comer as a pro se claimant. Indeed, even if Comer had received more significant assistance from the DAV, representation by an organizational aide is not equivalent to representation by a licensed attorney. Although aides from veterans’ service organizations provide invaluable assistance to claimants seeking to find their way through the labyrinthine corridors of the veterans’ adjudicatory system, they are “not generally trained or licensed in the practice of law.” Cook v. Brown, 68 F.3d 447, 451 (Fed. Cir. 1995). Thus, in Jacquay, 304 F.3d at 1282-88, we excused the fact that a veteran had sent his appeal to the wrong address, even though he had had some assistance from a non-attorney representative from a veterans’ service organization. The DAV was created by congressional charter “to advance the interests . . . of all wounded, injured, and disabled American veterans” and “to cooperate with the Department of Veterans Affairs . . . [in] advancing the condition, health, and interests of . . . disabled veterans.” 36 U.S.C. § 50302 (emphasis added). Since the function of aides from the DAV is to cooperate with the VA in obtaining benefits for disabled veterans, their role is fundamentally different from attorneys who represent clients in adversarial proceedings. See Stanley v. Principi, 283 F.3d 1350, 1355-56 (Fed. Cir 2002) (noting that lawyers had been historically excluded from board proceedings in

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order to keep the system informal and non-adversarial). To hold that a veteran forfeits his right to have his claims read sympathetically if he seeks assistance from a veterans’ service organization would be to discourage veterans from seeking the much-needed assistance that those organizations provide.

II. We next turn to Comer’s second argument on appeal, that the VA had an obligation to inform him that he was required to file a CUE motion if he wanted to obtain benefits retroactive to the date of his initial claim. He filed a claim for disability benefits in December 1988, and although the RO rated him as 30 percent disabled due to PTSD, it denied him benefits on the ground that his PTSD was not connected to his Vietnam service. In 2001, however, Comer persuaded the board that new evidence justified the reopening of his claim. He was then awarded service-connected benefits for PTSD, but those benefits were only effective as of February 26, 1999, the date of his motion to reopen his claim. Comer contends that the VA was obligated, under 38 U.S.C. § 5103(a), to inform him that he could only obtain benefits retroactive to December 29, 1988, the date of his initial claim, by filing a motion asserting that the RO’s initial determination that his PTSD was not service-connected contained CUE.2 In support, he says that section 5103(a) requires the VA to provide a veteran with notice of “any information . . . that is necessary to substantiate [his] claim,” 38 U.S.C. § 5103(a), 2 Although the RO initially concluded that Comer’s PTSD was not service-connected, when the board reopened his claim it noted that Comer had been diagnosed with PTSD and that “it generally appears that the diagnosis of PTSD is related to service.” 2001 Board Decision, slip op. at 5. On remand, the RO noted that Comer’s military records showed that, while in Vietnam, Comer was part of a division that had “participated in the Phase V Vietnam Counter Offensive and another unnamed campaign.”

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and contends that because he could not “substantiate” his claim for retroactive benefits without filing a CUE motion, the VA should have informed him that he needed to file such a motion. 3 Without a doubt, the process for reopening a previously disallowed claim and obtaining retroactive benefits can be exceedingly difficult, particularly for a veteran who is proceeding pro se. Where, as here, a veteran mounts a successful campaign to reopen a previously disallowed claim based on new and material evidence, he is likely to assume that he will have an opportunity to obtain the benefits to which he would have been entitled had he prevailed on his original claim. Surprisingly, however, this is not the case. The earliest effective date for an award based on a veteran’s request to reopen a final decision based on new and material evidence is generally the date that the application to reopen was filed. See 38 U.S.C. § 5110(a). It is only by filing a CUE claim that a veteran can obtain benefits retroactive to the date of the original RO decision. 38 U.S.C. §§ 5109A(b), 7111(b); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (“[A]bsent a showing of CUE, [a veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.”). As discussed above, the VA has an “affirmative duty to assist claimants by informing [them] of the benefits available to them and assisting them in developing

3 Section 5103(a) provides: “Upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant’s representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of that notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . . will attempt to obtain on behalf of the claimant.”

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claims they may have.” See Jaquay, 304 F.3d at 1280. It is only reasonable to expect, therefore, that if the VA is confronted with a claimant who seeks retroactive benefits, it will inform him that he needs to file a CUE motion in order to obtain those benefits. It is troubling that the VA apparently never informed Comer that he needed to file a CUE motion, but then denied his request for retroactive benefits on the ground that he had “not specifically alleged clear and unmistakable error” in the initial RO decision. See 2005 Board Decision, slip op. at 23. We decline, however, to resolve the issue of whether the VA had a duty, under section 5103(a), to notify Comer that he could only obtain retroactive benefits by filing a CUE motion because we conclude that even if the VA had such a duty, failure to fulfill it does not rise to reversible error.

4 In Sanders, this court held that a violation of the VA’s section 5103(a) notice obligations is presumptively prejudicial, but we also held that the VA can rebut the presumption. 487 F.3d at 891. 4 Another reason we decline to resolve the question of whether the VA had a duty to notify Comer that he could only obtain retroactive benefits by filing a CUE motion is that this issue was not addressed by either the Veterans Court or the board. “[I]t is the general rule . . . that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976); see also Boggs v. West, 188 F.3d 1335, 1337-38 (Fed. Cir. 1999) (refusing to resolve an issue on appeal where the Veterans Court did not “make reference to or decide [the] issue.”). Indeed, even assuming arguendo that the VA had a duty to inform Comer about the availability of a CUE motion, the VA has had no opportunity to make factual determinations regarding whether Comer was, in fact, provided with notice that he needed to file a CUE motion to obtain retroactive benefits, or whether he otherwise had actual knowledge regarding the need to file such a motion. See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), cert. granted, Peake v. Sanders, 128 S. Ct. 2935 (2008) (Even when section 5103(a) notice is defective, the VA can show that the error was not prejudicial by demonstrating “that any defect in notice was cured by actual knowledge on the part of the claimant.”); see also Mayfield v. Nicholson, 444 F.3d 1328, 1336 (Fed. Cir. 2006) (The question of whether a particular notice satisfies the notice requirements of section 5103(a) is “a substantially factual determination of the type that should be made by the agency in the first instance.”).

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Here, the government correctly observes that there is no time limit for filing a CUE claim. See 38 C.F.R. § 3.105(a). Accordingly, Comer has the right to file a CUE motion now, and if successful, he could obtain disability benefits retroactive to his initial claim. Thus, assuming arguendo that the VA failed to fulfill its section 5103(a) notice obligations, such failure does not constitute reversible error because Comer has not forfeited the right to bring a CUE claim. Cf. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (sustaining a Veterans Court determination that violation of notice obligations was harmless error where the VA had made an unreviewable factual determination that a claimant “had actual knowledge that he was required to submit medical evidence regarding his hearing loss to substantiate his claim”). Notwithstanding our conclusion that VA’s failure does not constitute grounds for reversal, we are not unmindful of the very real difficulties Comer has faced in his lengthy struggle to obtain disability benefits. Since 1988, Comer has persistently and articulately asserted that he is entitled to PTSD disability compensation. Yet-despite the fact that the VA does not dispute that Comer has suffered from PTSD since at least 1988 and that it acknowledged, in 2003, that his PTSD is service connected-it has yet to provide him disability benefits for the period from 1988 to 1999. As a final matter, the issue of whether the VA was required to inform Comer that he needed to file a CUE claim is moot if he has, in fact, already filed one. CUE claims “must be pled with specificity,” Johnston v. Nicholson, 421 F.3d 1285, 1287 (Fed. Cir. 2005), and must assert, based upon the evidence of record at the time of the original decision, an error that is “outcome determinative.” Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc). Here, although this court has not been provided with a

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complete record of all communications between Comer and the VA, there is evidence that at several points during his seemingly interminable struggle to obtain disability benefits, he made very specific allegations explaining why he believed that the original RO decision denying service connection contained clear error. For example, in 1999, Comer wrote to the board, stating that the RO’s determination that he was only a “part packer” while in Vietnam was “grossly erroneous.” He explained that orders, which had been “cut in country,” had assigned him to infantry duties, and that he could therefore not understand how the VA could have determined that his PTSD was not connected to his Vietnam service. Likewise, in November 2000, Comer wrote to the board stating that he “believe[d] that the record establishes service connection” because he “was assigned to a combat unit and [had] nightmares as a result of that assignment.” Again, in June 2003, he submitted a hand-written letter to the Veterans Court, arguing that because the VA had now acknowledged that his PTSD was service-connected, the RO’s initial determination to the contrary contained “clear error.” He argued that although the RO, in its initial decision, had concluded there was “no evidence” that he had served in combat, his personnel files clearly showed that he was a “combat veteran.” Whether a veteran has raised a particular claim is a factual determination, outside the purview of our appellate authority. See Bonner v. Nicholson, 497 F.3d 1323, 1328 (Fed. Cir. 2007); Moody, 360 F.3d at 1310. Accordingly, we remand the question of whether Comer has raised a valid CUE claim to the Veterans Court for further consideration. Although Comer still has the right to file a new CUE motion, a determination by the Veterans Court that he had asserted a valid CUE challenge in his

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earlier filings would presumably entitle him to expedited consideration of his claim. See 38 U.S.C. § 7112 (providing for the expedited treatment of claims remanded by the Veterans Court).

CONCLUSION
Accordingly, the judgment of the United States Court of Appeals for Veterans Claims is reversed, and the case is remanded for further proceedings consistent with this opinion.

COSTS
Costs to appellant.

REVERSED AND REMANDED