NON-Attorney Comments on February 2009 FedCir Decision in Robinson

ROBINSON v. SHINSEKI, No. 2008-7095 (DECIDED: February 25, 2009)

NON-Attorney Comments on February 2009 FedCir Decision in Robinson

It is refreshing to see the FedCir. restate their holding in Comer v. Peake, M.D., No. 2008-7013 (DECIDED: January 16, 2009) here.

This FedCir decision and opinions address numerous issues of interest to vets. The issues include differences in CUE and Direct appeals, duty to read filings in a "liberal manner" and where the claimant has raised an issue of service connection, the evidence in the record must be reviewed to determine the scope of that claim.

To start with the FedCir describes this case as one that "presents the question whether the obligation to liberally read filings applies to filings by counsel in the direct appeal phase of proceedings before the Board. We hold that the Board must read such filings liberally because this obligation is expressly imposed by the VA’s own regulations."

The FedCir addressed whether the Board was required to read the appeal filings of claimants represented by an attorney in "a liberal manner." The FedCir stated as we recently held in Comer, these regulations [38 C.F.R. § 20.200; 38 C.F.R. § 20.201; 38 C.F.R. § 20.202] impose an obligation on the Board to read the appeal filings “in a liberal manner.” The FedCir goes on to state that "while Comer was a pro se case, on its face the direct appeal regulations impose an obligation on the Board to read such filings by claimants “in a liberal manner,” regardless of whether the claimant is represented by an attorney. In fact "it would defeat the congressional purpose of increasing the availability of much needed attorney assistance if direct appeal attorney filings were read in a less sympathetic light than pro se filings."

In fact the FedCir states: "In various decisions we have made clear that the Board has a special obligation to read pro se filings liberally. See, e.g., Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009); Andrews, 421 F.3d at 1282-84; Roberson v. Principi, 251 F.3d 1378, 1380-84 (Fed. Cir. 2001). This obligation applies both to proceedings appealing a decision of the RO to the Board (“direct appeals”) and to proceedings alleging a clear and unmistakable error (“CUE”) in a final decision of the Board. See Comer, 552 F.3d at 1367-68; Andrews, 421 F.3d at 1282-84."

The FedCir addresses when an allegation that the Board failed to comply with its obligation to read filings liberally may be raised and states that, of course, it may be "raised for the first time on appeal to the Veterans Court.".

The FedCir addressed "the scope of the Board’s obligation to read the filings of the claimant “in a liberal manner.”" stating that "Thus, where the claimant has raised an issue of service connection, the evidence in the record must be reviewed to determine the scope of that claim." citing back to their decision in Comer.

TAGS:
38 C.F.R. § 20.200; 38 C.F.R. § 20.201; 38 C.F.R. § 20.202; CUE; "read in a liberal manner"; issues of service connection; CUE; Direct Appeals;

Andrews, 421 F.3d at 1282-84; Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009); Roberson v. Principi, 251 F.3d 1378, 1380-84 (Fed. Cir. 2001);
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++
it would defeat the congressional purpose of increasing the availability of much needed attorney assistance if direct appeal attorney filings were read in a less sympathetic light than pro se filings.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

In Comer, the claimant did not specifically raise retroactive entitlement to total disability based on individual unemployability (“TDIU”) benefits. However, the court held that the Board was obligated to consider retroactive TDIU benefits because the claimant filed an appeal raising related issues and the record before the Board included “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.” 552 F.3d at 1367 (quotation marks omitted).
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Thus, where the claimant has raised an issue of service connection, the evidence in the record must be reviewed to determine the scope of that claim. As we stated in Comer, “the VA is obligated to determine all potential claims raised by the evidence.” Id. at 1367 (quoting Roberson, 251 F.3d at 1384). However, claims which have no support in the record need not be considered by the Board. Contrary to the dissenting opinion in the Veterans Court, the Board is not obligated to consider “all possible” substantive theories of recovery. Robinson, 21 Vet. App. at 559. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++

We hold only that the veteran’s efforts to raise issues on direct appeal should be liberally construed whether or not the veteran is represented by counsel.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++


United States Court of Appeals for the Federal Circuit
2008-7095
MARVIN ROBINSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. On the brief was Mark R. Lippman, The Veterans Law Group, of La Jolla, California.
Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Michael F. Hertz, Acting Assistant Attorney General, and Jeanne E. Davidson, Director.
Richard R. James, of Glen Allen, Virginia, for amicus curiae National Organization of Veterans Advocates, Inc.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Lawrence B. Hagel
United States Court of Appeals for the Federal Circuit
2008-7095
MARVIN ROBINSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 04-1690, Judge Lawrence B. Hagel.
___________________________
DECIDED: February 25, 2009
___________________________
Before NEWMAN, PLAGER, and DYK, Circuit Judges.
DYK, Circuit Judge.
Marvin Robinson (“Robinson”) appeals a decision of the Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision by the Board of Veterans’ Appeals (“Board”). The Board denied service connection on a claim for heart disease and a thyroid disability. We affirm.

BACKGROUND
Robinson served on active duty in the United States Navy from October 16, 1986, to April 14, 1988. On May 27, 1987, Robinson was diagnosed with a peptic ulcer and treated at the Naval Hospital in San Diego, California. In November 1988,
Robinson was awarded service connection for the ulcer by the Department of Veterans Affairs (“VA”) effective from the day following the date of his discharge from service.
Ten years later, in December 1998, Robinson submitted a claim to the VA for heart and thyroid conditions which allegedly began in February 1996. The VA Regional Office (“RO”) in Montgomery, Alabama, denied Robinson’s claim for the heart and thyroid conditions on September 14, 1999.
Robinson’s newly retained attorney filed a notice of disagreement in November 1999, in which Robinson stated that he “disagree[s] with your office’s decision . . . [denying Robinson’s] claims for entitlement to service connection for heart disease and hyperthyroid condition as secondary to [Robinson’s] service connected peptic ulcer disease.” R. at 138-39.
The VA then sent Robinson a statement of the case and accompanying notice letter. The notice letter stated as follows:
This summary will help you make the best argument to the [Board] . . . . To complete your appeal, you must file a formal appeal. We have enclosed VA Form 9 . . . . Your appeal should address . . . the errors that you believe we made in applying the law.”
R. at 146. In one place, the statement of the case characterized the relevant issues as “[s]ervice connection for heart disease as secondary to the service-connected disability of peptic ulcer disease” and “[s]ervice connection for hyperthyroid condition as secondary to the service-connected disability of peptic ulcer disease. R. at 148. However, in the decision section, the statement of the case is broader: “[s]ervice connection for heart disease is denied” and “[s]ervice connection for hyperthyroid condition is denied.” R. at 149.

2008-7095 2

Robinson perfected his appeal by filing a substantive appeal, VA Form 9, in January 2000. Robinson checked the box indicating that he “want[ed] to appeal all of the issues listed on the statement of the case and any supplemental statements of the case.” R. at 152. Prompt 10 on the form, stating “Here is why I think the VA decided my case incorrectly,” was left blank.
The VA filed a supplemental statement of the case in April 2001, including a discussion of additional evidence but stating the issues and decision in substantially the same manner. Robinson responded with a second substantive appeal, VA Form 9, in May 2001. On this appeal form, Robinson again checked that he wanted to appeal all of the issues, and wrote in response to prompt 10 that “I disagree with all of the conclusions in your office’s Statement of the Case, dated April 18, 2001. The Regional Office failed to consider all the evidence and failed to follow the correct legal standards in reaching its conclusions.” R. at 174.
In October 2001, the Board remanded to the RO for additional development of the record, including obtaining all treatment records and “arrang[ing] for a VA examination by an appropriate specialist in order to determine the nature, severity, and etiology of any thyroid disorder [and any cardiovascular disorder].” Appeal of Robinson, No. 00-02 500, slip. op. at 4-5, (Bd. Vet. App. Oct. 18, 2001). A VA examination occurred in late 2002, and the report of the examination stated that Robinson was first diagnosed with his thyroid disorder in 1998; that the thyroid disorder was not secondary to the ulcer; and that Robinson’s chest pain was “noncardiac.” R. at 697.
In May 2004, the Board denied Robinson’s claim for service connection for the heart condition and the thyroid condition. The Board reviewed all the evidence and

2008-7095 3

concluded that “none of the records submitted tends to attribute cardiovascular disease to active service or to service-connected peptic ulcer disease.” Appeal of Robinson, No. 00-02 500, slip. op. at 4-5, (Bd. Vet. App. May 17, 2004). After discussing the relevant legal standards for direct service connection, the Board characterized the veteran’s arguments:
In this case, however, the veteran contends that cardiovascular disease and/or a thyroid disorder were caused or aggravated by service-connected peptic ulcer disease, rather than due directly to any incident of active service. Therefore, the remainder of the analysis will focus solely on secondary service connection for those disorders.
Id. The Board then addressed the issue of secondary service connection and ultimately concluded that, “[a]fter consideration of all the evidence, the Board finds that the preponderance of it is against the claim.” Id. at 9.
Robinson appealed to the Veterans Court. In his briefs before the Veterans Court, Robinson raised, inter alia, the contention that “[t]he record . . . before the Board revealed that the Appellant may be entitled to service connection on a direct basis. . . . [T]he Board’s failure to address th[is] issue[] was in error.” Appellant’s Court. App. Vet. Cl. Reply Br. 2-3 (emphasis omitted).1 In its decision of January 29, 2008, a divided panel of the Veterans Court affirmed. Robinson v. Mansfield, 21 Vet. App. 545 (2008).
The Veterans Court first considered whether it had jurisdiction over Robinson’s claim for direct service connection when Robinson did not argue direct service connection before the Board. Id. at 550-51. The court held that it had jurisdiction
1 The only other issues raised by Robinson before the Veterans Court were the alleged inadequacy of the medical examination and the alleged failure of the medical examination to comply with the prior remand order. The court affirmed the Board on these issues, and neither issue is contested by Robinson on appeal.

2008-7095 4

because direct service connection was not a different claim from secondary service connection; it was instead another argument under the same claim. Id.
The court then considered whether the Board erred in failing to adjudicate the issue of direct service connection. The court characterized the question as one of “issue exhaustion,” and concluded that “[i]n this case, neither the appellant nor the record raised the theory of entitlement to service connection on a direct basis and, thus, the Board did not err in failing to discuss that theory.” Id. at 553-54. In discussing whether the issue was raised by the claimant, the court relied in part on the participation of counsel in proceedings before the Board. The majority went on to hold that the issue of direct service connection was not raised by the record before the Board. Id. at 555-56.
The dissent disagreed with the majority’s interpretation of the correct test to apply to determine whether the Board needs to address a theory of service connection, and urged that the Board is required to consider “all possible” theories under which the veteran could recover, even if there was nothing either stated by the claimant or in the record to raise the theory. Id. at 558-60 (Schoelen, J., dissenting). However, the dissent recognized that this duty “is not absolutely limitless-it is an inquiry into what is possible.” Id. at 559. The dissent stated that this duty would not apply “for example, where the claimant is ineligible for the benefit . . . ; if the claim is inherently incredible or clearly lacks merit; or if the application requests a benefit to which the claimant is not entitled as a matter of law.” Id. at 559 (citation omitted).

2008-7095 5

The dissent urged that it was irrelevant whether the veteran had raised the issue, reasoning that the Supreme Court’s decision in Sims v. Apfel, 530 U.S. 103 (2000), prohibited the application of issue exhaustion to the nonadversarial Board process (except in the clear and unmistakable error context as in Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005)). Robinson, 21 Vet. App. at 561-62. The dissent also urged that it was wrong to impose additional requirements on represented appellants to raise issues in the nonadversarial Board process because it would create perverse incentives not to obtain representation. Id. at 564. The dissent would have remanded to require the Board to address the issue of direct service connection.
The Veterans Court denied en banc review on February 25, 2008, over a dissent by Judge Kasold. Robinson timely appealed to this court. We have jurisdiction over this appeal under 38 U.S.C. § 7292.

DISCUSSION
I
In various decisions we have made clear that the Board has a special obligation to read pro se filings liberally. See, e.g., Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009); Andrews, 421 F.3d at 1282-84; Roberson v. Principi, 251 F.3d 1378, 1380-84 (Fed. Cir. 2001). This obligation applies both to proceedings appealing a decision of the RO to the Board (“direct appeals”) and to proceedings alleging a clear and unmistakable error (“CUE”) in a final decision of the Board. See Comer, 552 F.3d at 1367-68; Andrews, 421 F.3d at 1282-84. In Andrews, however, we held that this obligation does not extend to filings by counsel in CUE proceedings. 421 F.3d at 1283-84. This case presents the question whether the obligation to liberally read filings

2008-7095 6

applies to filings by counsel in the direct appeal phase of proceedings before the Board. We hold that the Board must read such filings liberally because this obligation is expressly imposed by the VA’s own regulations.
A
In order to appeal a decision of the RO on a new or original claim to the Board, the claimant must follow the Board’s Rules of Practice as delineated by regulation at 38 C.F.R. part 20. As the regulations state, there are two filings that must be made to perfect an appeal of a decision of the RO: a notice of disagreement, and a substantive appeal. 38 C.F.R. § 20.200. “While special wording is not required,” the notice of disagreement must be a written communication that “can be reasonably construed as disagreement with [the RO’s decision] and a desire for appellate review.” 38 C.F.R. § 20.201. The regulations require that the claimant identify issues appealed in the notice of disagreement only if the RO “gave notice that adjudicative determinations were made on several issues at the same time.” Id. As an example of what might constitute “several issues” in this context, the regulations identify the situation where “service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities.” Id.
After the VA responds to the notice of disagreement with a statement of the case, the claimant is then required to file a substantive appeal. 38 C.F.R. § 20.202. The substantive appeal can be completed by filling out a simple one-page form, VA Form 9. Id. The regulations describe in detail how the Board will read the substantive appeal:
If the Statement of the Case . . . addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive
2008-7095 7
Appeal should set out specific arguments relating to errors of fact or law made by the [RO] in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the Statement of the Case . . . . The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. The Board will not presume that the appellant agrees with any statement of fact contained in a Statement of the Case . . . which is not specifically contested.
Id. (emphases added).
B
As we recently held in Comer, these regulations impose an obligation on the Board to read the appeal filings “in a liberal manner.” 552 F.3d at 1368. While Comer was a pro se case, on its face the direct appeal regulations impose an obligation on the Board to read such filings by claimants “in a liberal manner,” regardless of whether the claimant is represented by an attorney.
This interpretation is further supported by Congress’s recent decision to expand the availability of paid representation in Board proceedings in direct appeals. See Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, § 101(c)(1)(A), 120 Stat. 3403, 3407 (codified at 38 U.S.C. § 5904(c)(1)). Indeed, it would defeat the congressional purpose of increasing the availability of much needed attorney assistance if direct appeal attorney filings were read in a less sympathetic light than pro se filings. As we stated in the context of veterans’ service organizations in Comer, “[t]o hold that a veteran forfeits his right to have his claims read sympathetically if he seeks assistance . . . would be to discourage veterans from

2008-7095 8

seeking th[is] much-needed assistance” at this early stage of the proceedings. 552 F.3d at1370.
Our holding in this respect is not inconsistent with Andrews, 421 F.3d 1278. In Andrews, this court held that the rule that the Board was required to read pro se filings liberally did not extend to filings by counsel in the CUE context. Id. at 1283-84. There are three critical features of CUE claims that justify the different treatment of CUE filings.
First, CUE proceedings are fundamentally different from direct appeals. See 38 C.F.R. § 20.1402 (“Motions filed under this subpart [CUE claims] are not appeals and, except as otherwise provided, are not subject to the provisions . . . which relate to the processing and disposition of appeals.”); Disabled Am. Veterans v. Gober, 234 F.3d 682, 694-95 (Fed. Cir. 2000) (upholding the validity of § 20.1402 and discussing the purpose of the provision). CUE proceedings are a limited exception to the rule of finality that permits collateral attack on a Board decision only where “a very specific and rare kind of error [is made] that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.” 38 C.F.R. § 20.1403; see Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc) (holding that a breach of the duty to assist cannot constitute CUE).
Second, unlike direct appeals, regulations governing CUE claims make no mention of any obligation to construe the filings liberally, and instead place the onus of specifically raising each issue on the claimant:
The motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the
2008-7095 9
Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart.
38 CFR § 20.1404(b) (emphases added); see Disabled Am. Veterans, 234 F.3d at 698-99 (finding the specificity requirement reasonable, though invalidating a prior version of the regulation for other reasons). As the emphasized language demonstrates, the regulations limit the proceedings to the very specific issues raised by the filings.
Third, as discussed in Andrews, each new CUE theory is independent for res judicata purposes, so a narrow reading of what CUE theories were raised would work no disadvantage to the claimant, as any unraised theories could be raised in a new CUE action. See 38 C.F.R. § 20.1409(c) (“Once there is a final decision on a motion under this subpart relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of clear and unmistakable error.” (emphasis added)); Andrews, 421 F.3d at 1284; Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (“Because a CUE claim involves an allegation of an error with some degree of specificity, a veteran’s assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim.” (quotation marks omitted)). On appeals to the Board, by contrast, theories of substantive entitlement to benefits such as direct and secondary service connection are not independent for res judicata purposes, and can be lost forever if not addressed. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (Fed. Cir. 2005).

2008-7095 10

For these reasons, it is appropriate to differentiate between CUE proceedings and direct appeals. In direct appeals, all filings must be read “in a liberal manner” whether or not the veteran is represented. 38 C.F.R. § 20.202.
An allegation that the Board failed to comply with its obligation to read filings liberally may, of course, be raised for the first time on appeal to the Veterans Court.
II
We turn finally to the scope of the Board’s obligation to read the filings of the claimant “in a liberal manner.”
We recently addressed this question in Comer. In Comer, the claimant did not specifically raise retroactive entitlement to total disability based on individual unemployability (“TDIU”) benefits. However, the court held that the Board was obligated to consider retroactive TDIU benefits because the claimant filed an appeal raising related issues and the record before the Board included “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.” 552 F.3d at 1367 (quotation marks omitted).
The government in Comer argued that the claimant “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.” Id. We rejected that argument and clarified that the obligation to read filings in a liberal manner included the question of what issues were raised. Id. at 1367-68.
Thus, where the claimant has raised an issue of service connection, the evidence in the record must be reviewed to determine the scope of that claim. As we stated in

2008-7095 11
2 Indeed, as the government contends, it may well be that the Veterans Court was incorrect in suggesting that the Board did not address the direct service connection issue; it appears from the Board opinion that it in fact did so. The Board reviewed Robinson’s service medical records and found that “[t]he veteran’s service medical records . . . do not reflect any complaint or finding of a thyroid disorder or heart

Comer, “the VA is obligated to determine all potential claims raised by the evidence.” Id. at 1367 (quoting Roberson, 251 F.3d at 1384). However, claims which have no support in the record need not be considered by the Board. Contrary to the dissenting opinion in the Veterans Court, the Board is not obligated to consider “all possible” substantive theories of recovery. Robinson, 21 Vet. App. at 559. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory.
We also do not suggest that under the regulations the veteran is entirely relieved of his or her obligation to raise issues in the first instance before the VA where the record is being made. The regulations quite clearly impose such an obligation even in direct appeals, stating that “the Substantive Appeal must either indicate that the appeal is being perfected as to all . . . issues or must specifically identify the issues appealed. . . . [T]he Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed.” 38 C.F.R. § 20.202. We hold only that the veteran’s efforts to raise issues on direct appeal should be liberally construed whether or not the veteran is represented by counsel. In this context, having raised the basic issue of service connection-here that the veteran suffered thyroid and heart conditions that were somehow related to service-the Board was obligated to consider direct as well as secondary service connection if raised by the record.2

2008-7095 12 2008-7095 13

disease [during service]. . . . The first evidence of a thyroid disorder or heart disease is many years after service.” Appeal of Robinson, No. 00-02500, slip. op. at 5, (Bd. Vet. App. May 17, 2004). In reviewing records from the Social Security Administration (“SSA”), the Board found that “[n]one of the SSA records tend to link any thyroid or cardiovascular disorder to active service or to service-connected disability nor does any SSA record tend to show any cardiovascular renal disease within a year of separation from active service.” Id. at 6.
III
In this case, the court found as a factual matter that the record did not raise any issue of direct service connection. Robinson, 21 Vet. App. at 555-56. Although the dissenting opinion in the Veterans Court points to facts that the dissent urges require a different result, the factual determinations of the court are beyond our jurisdiction to review. Szemraj v. Principi, 357 F.3d 1370, 1374-75 (Fed. Cir. 2004). As a result, we must affirm the judgment of the Court of Appeals for Veterans Claims.
AFFIRMED
COSTS
No costs.

FedCir. Non-precendential disposition in Collins 2009, TDIU.

FedCir. Non-precendential disposition in Collins 2009, TDIU.

Although Collins is a nonprecedential decision, the references to 5110(b) and Hazan and Dalton are important for research purposes as the view expressed here on those cases can help vets understand the Veterans Court decision in Hazan and Dalton. [Hazan v. Gober, 10 Vet. App. 511 (1997); Dalton v. Nicholson, 21 Vet. App. 23 (2007)]


"Hazan required that the Board review “all the evidence of record (not just evidence not previously considered) as to the disability in order to ‘ascertain[]’ the ‘earliest’ possible effective date.” 10 Vet. App. at 518. Dalton held that when a veteran seeks TDIU benefits as a result of a past injury, the Board should apply Section 5110(b)."

We also note this point, and suggest that it be considered if you are considering appealing to the FedCir.
“[i]t is well established that a litigant’s right to have all issues fully considered and ruled on by the appellate court does not equate to a right to a full and written opinion on every issue raised.” Berklau v. Principi, 291 F.3d 795, 801 (Fed. Cir. 2002)(internal quotations omitted).


Federal Circuit

Our review of rulings of the Veterans Court is limited by statute. We may not review “(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. §7292(d)(2). We must affirm a decision of the Veterans Court unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 38 U.S.C. §7292(d)(1)(A).

TAGS:
38 U.S.C. §5110(a)(b);

Berklau v. Principi, 291 F.3d 795, 801 (Fed. Cir. 2002); Hazan v. Gober, 10 Vet. App. 511 (1997); Dalton v. Nicholson, 21 Vet. App. 23 (2007).

++++

"38 U.S.C. §5110. Subsection (a) of §5110 provides that the earliest effective date is the date of filing the application for the claim. Subsection (b), however, provides that the claim can be effective retroactively to the date of occurrence of the injury or an increase in disability, provided that the claim is filed within a year of such injury or increase in disability."
++++

"Section 5110(b) refers to the date of exacerbation of the injury."
++++

Although it may be logical to assume that the date of an injury precedes the date it is verified by a physician, the finding that there was not evidence of total disability before that date is a finding of fact and is not reviewable by this court.
++++


NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7041
HERSCHEL L. COLLINS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
William F. Fox, Purcell & Fox, LLP, of Washington, DC, for claimant-appellant.
Elizabeth A. Holt, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. On the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, Todd M. Hughes, Deputy Director, and Dawn S. Conrad, Trial Attorney. Of counsel was Marla T. Conneely, Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Martin J. Sendek, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Bruce E. Kasold
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7041
HERSCHEL L. COLLINS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in Case No. 05-3203, Judge Bruce E. Kasold.
___________________________
DECIDED: February 11, 2009
___________________________
Before NEWMAN, and LOURIE, Circuit Judges, and ALSUP,∗ District Judge.
PER CURIAM.
Herschel L. Collins is a disabled veteran with a rating of total disability due to individual unemployability (TDIU). He appeals the decision of the United States Court of Appeals for Veterans Claims (the Veterans Court), which upheld the decision of the Board of Veterans’ Appeals (Board) denying his claim for an earlier effective date of the TDIU
∗ William H. Alsup, United States District Court for the Northern District of California, sitting by designation.
rating.1 We affirm the decision of the Veterans Court.
1 Collins v. Nicholson, No. 05-3203, 2007 U.S. App. Vet. Claims LEXIS 1235 (Vet. App. Aug. 6, 2007).
BACKGROUND
Mr. Collins served on active duty from April 1975 to May 1976. During this service, he sustained an injury to his back. He filed a claim for benefits in May 1976, and the claim was granted in November 1976 with a disability rating of 10%. In November 1991, following reopening of the claim, Mr. Collins’ disability rating was increased to 20%. On March 3, 1997 the rating was increased to 40%. On March 11, 1997 Mr. Collins filed a claim for increased compensation based on unemployability, and also filed a Notice of Disagreement with the March 3, 1997 decision. On August 6, 1997 the Regional Office denied TDIU benefits, but on December 12, 1997 the Regional Office increased the disability rating from 40% to 60%, with the effective date of November 21, 1996. Mr. Collins appealed to the Board and the Board granted an earlier effective date of June 13, 1996 for the 60% disability rating.
In January 1998 Mr. Collins filed a new claim seeking TDIU rating. In May 1998 the claim was denied by the Regional Office; Mr. Collins did not appeal the denial to the Board. On October 1, 1998, Mr. Collins filed another claim for TDIU, stating that he became unemployable in June 1996. He submitted two letters from his private physician, Dr. John O’Brien, who stated that Mr. Collins’ treatment is symptomatic, that the 60% disability rating is appropriate, and that Mr. Collins cannot be employed in construction, the field in which he had worked. In February 1999 the Regional Office denied this TDIU claim and concluded that the back injury did not prevent Mr. Collins from gainful employment. In May

2008-7041 2

2000 the Regional Office reaffirmed its decision.
However, on April 24, 2001 the Regional Office granted Mr. Collins’ TDIU claim, based on a routine VA examination conducted on January 24, 2001. The Regional Office held that the effective date for Mr. Collins’ TDIU is January 24, 2001, the date of the VA examination, explaining that “an earlier effective date is not warranted since there is no objective evidence on record that shows the veteran was significantly disabled due to his service-connected back condition prior to the examination conducted on 1-24-01.” Mr. Collins filed a Notice of Disagreement, requesting an earlier effective date. The Board denied an earlier effective date, stating that "there is no evidence received subsequent to May 1998 from which it is ascertainable that prior to January 24, 2001 the veteran was unemployable due to service-connected disabilities alone.”
Mr. Collins appealed to the Veterans Court. The court held that “[t]he Board's finding that the earliest evidence of unemployability was January 24, 2001, is not clearly erroneous.” The court also pointed out that the 1997 and 1998 Regional Office decisions rejecting Mr. Collins’ TDIU claims were not appealed, and thus can not support an earlier effective date. This appeal followed.
DISCUSSION
Our review of rulings of the Veterans Court is limited by statute. We may not review “(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. §7292(d)(2). We must affirm a decision of the Veterans Court unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 38 U.S.C. §7292(d)(1)(A).

2008-7041 3
A
Mr. Collins presents three arguments in support of his appeal. First, he argues that the Veterans Court improperly conflated two distinct provisions of 38 U.S.C. §5110. Subsection (a) of §5110 provides that the earliest effective date is the date of filing the application for the claim. Subsection (b), however, provides that the claim can be effective retroactively to the date of occurrence of the injury or an increase in disability, provided that the claim is filed within a year of such injury or increase in disability. Mr. Collins states that the Veterans Court’s conclusion that “the earliest evidence of unemployability was January 24, 2001,” ignores that he filed several TDIU claims prior to January 24, 2001. He states that on the basis of those earlier claims he should receive an earlier effective date for TDIU, pursuant to §5110(b).
Section 5110(b) refers to the date of exacerbation of the injury. The Veterans Court determined that the only evidence of total unemployability was the medical examination of January 24, 2001. Evaluation of evidence, and factual conclusions drawn from evidence, are factual determinations that we are without authority to revisit. See 38 U.S.C. §7292(d)(2). Although it may be logical to assume that the date of an injury precedes the date it is verified by a physician, the finding that there was not evidence of total disability before that date is a finding of fact and is not reviewable by this court.
B
Next, Mr. Collins argues that the Veterans Court violated 38 U.S.C. §7261 because the court did not elaborate on its finding that the 1997 and 1998 Regional Office denials of Mr. Collins’ TDIU claims were not appealed.

2008-7041 4

Section 7261(a)(1) of Title 38 requires that “the Court of Appeals for Veterans Claims to the extent necessary to its decision and when presented, shall -- decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary.” Mr. Collins states that by failing to explain its holding that the 1997 and 1998 denials of Mr. Collins’ TDIU claims were final, the Veterans Court violated §7261. However, the question of whether the 1997 and 1998 decisions were final is not necessary to the outcome of the case. It does not matter whether the 1997 and 1998 claims remained open or were final, for the claims are not, in and of themselves, evidence of total disability. Thus the presence or absence of discussion would not change the result. Further, “[i]t is well established that a litigant’s right to have all issues fully considered and ruled on by the appellate court does not equate to a right to a full and written opinion on every issue raised.” Berklau v. Principi, 291 F.3d 795, 801 (Fed. Cir. 2002)(internal quotations omitted). We discern no error in the Veterans Court’s treatment of this issue.
C
Finally, according to Mr. Collins, in determining the effective date of his TDIU rating, the Veterans Court disregarded evidence that was part of his previous TDIU claims and only looked at the evidence that was included in the latest claim. Mr. Collins argues that such treatment violates the Veterans Court’s precedential decisions in Hazan v. Gober, 10 Vet. App. 511 (1997), and Dalton v. Nicholson, 21 Vet. App. 23 (2007). Hazan required that the Board review “all the evidence of record (not just evidence not previously considered) as to the disability in order to ‘ascertain[]’ the ‘earliest’ possible effective date.”

2008-7041 5 2008-7041 6

10 Vet. App. at 518. Dalton held that when a veteran seeks TDIU benefits as a result of a past injury, the Board should apply Section 5110(b).
With respect to Hazan, Mr. Collins has not pointed to any evidence of record that the Board or Veterans Court did not consider; nor is this factual aspect reviewable by appeal to the Federal Circuit. Similarly, the conclusion does not contravene the rule in Dalton, for the reasons stated ante in connection with our discussion of Section 5110(b).
CONCLUSION
The decision of the Court of Appeals for Veterans Claims is affirmed.
Each party shall bear its costs.

Non-Attorney comments on the FedCir's decision in Moore v. Shinseki, No. 2007-7306.

As a non-attorney, I found several things of interest in the FedCir's decision in Moore v. Shinseki, No. 2007-7306.

I found two important comments in this decision. One this decision seems to set forth the responsibility of the VA to obtain all records, including those before the date of the claim and Two the Federal Circuit appears to be sending a message to the VA when they described VA's duty to assist as "shamefull". full quote: "It is shameful that the VA yet again failed in its duty to assist the veteran and, at best, poor judgment by the Department of Justice in defending the VA’s actions." This makes the third FedCir. decision that I am aware of, building on Comer and Barrett [see earlier posts], that seems to recognizes the plight being experienced by some vets when dealing with the VA.

I applaud the FedCir.'s praise for the Pro Bono attorney in this matter and wish that every vet out there could secure help and representation for their claim[s].
The FedCir stated: "At oral argument, however, Moore’s attorney, Daniel P. Graham, announced that he had just the day before obtained a copy of the Tripler records. Graham explained that the records had been “lost in the bowels” of the National Personnel Records Center (“NPRC”) and that he had secured them only after repeated requests to both Tripler and the NPRC. We commend Graham, serving as counsel pro bono, for his tenacious efforts on his client’s behalf."

The FedCir. also cites back to Comer v. Peake, [No. 2008-7013, 2009 U.S. App. LEXIS 668, at *16 (Fed. Cir. Jan. 16, 2009)], and their description of the VA system as a labyrinthine is right on: " We are mindful, however, that many veterans must navigate the “labyrinthine corridors of the veterans’ adjudicatory system” without the assistance of counsel.",

Also the FedCir description of the Department of Justice [DOJ] defense of the VA in this case as "at best, poor judgment", seems to be sending a message to the DOJ, full quote: "It is shameful that the VA yet again failed in its duty to assist the veteran and, at best, poor judgment by the Department of Justice in defending the VA’s actions."

I also found this statement of note: "We fail to understand how the government, without examining the Tripler records, can have any idea as to whether they would, or would not, support Moore’s claim for an increased disability rating. See McGee v. Peake".

Other points I found interesting are listed below:

In 1992, when Moore originally submitted his claim for benefits, the VA’s duty to assist veterans was codified in 38 U.S.C. § 5107(a), which provided that “[t]he Secretary shall assist . . . a claimant in developing the facts pertinent to his or her claim.” When Congress enacted section 5107(a), it “codified the VA’s obligation to assist claimants, which had existed in 38 C.F.R. § 3.103(a) since 1972.” Cook v. Principi, 318 F.3d 1334, 1337-38 n.4 (Fed. Cir. 2002) (en banc). The VA’s duty to assist claimants is now codified at 38 U.S.C. § 5103A, which was added by the Veterans Claim Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096, 2097. However, 38 C.F.R. § 3.103(a), the regulation setting forth the duty to assist, remains unchanged. See Cook, 318 F.3d at 1338 n.4.

I also add that the Veterans Court has addressed the meaning of pertinent and that it takes on a special meaning within the VA system. see "Within the non-adversarial process of VA claims adjudication, the word 'pertinent' takes on an even stronger meaning; the Secretary's duty applies to all relevant facts, not just those for or against the claim." Murphy, slip op. at 5. Also see § 3007(a) (Within the non-adversarial process of VA claims adjudication, the word "pertinent" takes on an even stronger meaning; the Secretary's duty applies to all relevant facts, not just those for or against the claim. Having been codified by Public Law 100- 687, this obligation is more than a matter of policy or executive discretion; it is mandated by statute.), see also Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998).
++++

"By regulation, the VA is specifically required to assess a disability “in relation to its history” when making disability ratings determinations:
Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.
38 C.F.R. § 4.1,."
++++

“Different examiners, at different times, will not describe the same disability in the same language” and “a change for the better or worse” in a veteran’s condition “may not be accurately . . . described” in a single report. See 38 C.F.R. § 4.2. Accordingly, “[i]t is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.” Id.; see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (evaluating a current disability in light of its complete recorded history “operate[s] to protect claimants against adverse decisions based on a single, incomplete or inaccurate report”)."
++++

"Evaluation of a disability in light of its history is particularly important in the context of psychiatric disorders. Because “psychiatric disorders abate and recur,” the VA is obligated to evaluate them “not by reference to isolated periods of activity or remission, but by assessing the effects of the disease or injury over the history of the condition.” Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002)."
++++

"the clear mandate of VA regulations is that a veteran’s disability must be evaluated in light of its whole recorded history."
++++

"As discussed above, the VA is statutorily required to obtain all of the veteran’s relevant service medical records, not simply those which it can most conveniently locate. See 38 U.S.C. § 5103A(c). Indeed, pursuant to 38 C.F.R. § 3.159(c)(2), the VA is specifically required to “make as many requests as are necessary to obtain” records that are in the possession of the federal government, such as a veteran’s service medical records."
++++

"The record on appeal does not establish that the VA made any effort to obtain the service medical records after Tripler failed to produce them.2"
++++

"We fail to understand how the government, without examining the Tripler records, can have any idea as to whether they would, or would not, support Moore’s claim for an increased disability rating. See McGee v. Peake, 511 F.3d 1352, 1358 (Fed. Cir. 2008) (Section 5103A “simply does not excuse the VA’s obligation to fully develop the facts of [a] claim based on speculation as to the dispositive nature of relevant records.”)."
++++

"the records of his hospitalization may well contain evidence that he suffers from a serious, and perhaps chronic, psychiatric disorder. Such records could potentially call into question the VA’s conclusion that Moore suffered from only “mild social and industrial impairment” and was therefore entitled to no more than a 10 percent disability rating in the period after September 1992. Thus, contrary to the government’s assertions, the Tripler records could well contain evidence sufficient to establish Moore’s entitlement to increased disability benefits."
++++

++++++++++++++++++++++++++++++++++++++++++++++++++++++++
TAGS:
38 C.F.R. § 4.1; 38 C.F.R. § 4.2; 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); 38 C.F.R. § 3.103(a); 38 U.S.C. § 5107(a);

Comer v. Peake, [No. 2008-7013, 2009 U.S. App. LEXIS 668, at *16 (Fed. Cir. Jan. 16, 2009); Cook v. Principi, 318 F.3d 1334, 1337-38 n.4 (Fed. Cir. 2002) (en banc); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); McGee v. Peake, 511 F.3d 1352, 1358 (Fed. Cir. 2008); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991);


"Judge Kasold [CAVC] dissented, asserting that the Tripler medical records were “relevant on their face” and should have been obtained by the VA prior to making any rating determination. 2007 Veterans Court Decision, 21 Vet. App. at 221 (Kasold, J., dissenting). He noted that the VA was required, pursuant to 38 C.F.R. § 4.1, to evaluate a disability “in relation to its history” and that the VA could not have properly evaluated Moore’s claim for disability compensation because “a significant part of [his] medical history relevant to his psychiatric disability is simply missing.” 2007 Veterans Court Decision, 21 Vet. App. at 222 (Kasold, J., dissenting)."
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

We are mindful, however, that many veterans must navigate the “labyrinthine corridors of the veterans’ adjudicatory system” without the assistance of counsel. See on other grounds, Comer v. Peake, No. 2008-7013, 2009 U.S. App. LEXIS 668, at *16 (Fed. Cir. Jan. 16, 2009). Because many veterans lack the knowledge and resources necessary to locate relevant records, Congress has appropriately placed the burden on the VA to ensure that all relevant service medical records are obtained and fully evaluated. See 38 U.S.C. § 5103A(c)(1); Hayre v. West, 188 F.3d 1327, 1331 (Fed. Cir. 1999), overruled Cook, 318 F.3d at 1338-40 (The VA must “make all possible efforts to obtain and assess records relevant to an evaluation of [a veteran’s] disability” (citation and internal quotation marks omitted) (emphasis in original)). It is shameful that the VA yet again failed in its duty to assist the veteran and, at best, poor judgment by the Department of Justice in defending the VA’s actions.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++
United States Court of Appeals for the Federal Circuit
2007-7306
DWAYNE A. MOORE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI,
Secretary of Veterans Affairs,
Respondent-Appellee.
Daniel P. Graham, Wiley Rein LLP, of Washington, DC, argued for claimant-appellant.
Claudia Burke, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief was David J. Barrans, Deputy Assistant General Counsel, Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Alan G. Lance, Sr.
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2007-7306
DWAYNE A. MOORE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 04-2386, Judge Alan G. Lance, Sr.
______________________
DECIDED: February 10, 2009
_______________________
Before MAYER and DYK, Circuit Judges, and HUFF,* District Judge.
MAYER, Circuit Judge.
Dwayne A. Moore appeals the judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”) which affirmed a Board of Veterans’ ___________________
∗ Honorable Marilyn L. Huff, District Judge, United States District Court for the Southern District of California, sitting by designation.
Appeals decision denying his request for a higher disability rating. See Moore v. Nicholson, 21 Vet. App. 211 (2007) (“2007 Veterans Court Decision”). Because we conclude that the Department of Veterans Affairs (“VA”) erred in failing to obtain Moore’s service medical records before making a determination as to the severity of his psychiatric disability, we reverse and remand.
BACKGROUND
Moore served on active duty in the military from May 1988 to February 1991. While in the service, Moore made superficial lacerations to his wrists and was hospitalized in the psychiatric ward of Tripler Army Medical Center (“Tripler”) from December 29, 1990, to January 3, 1991. Following his discharge, a staff psychiatrist concluded that Moore suffered from “a severe personality disorder which render[ed] him a danger to himself and/or others” and recommended that he be separated from the service on an “expeditious” basis. Soon thereafter, Moore was given a “general medical discharge” from the military. In September 1992, Moore filed a claim seeking service-connected disability benefits for his psychiatric disorder. The VA Regional Office (“RO”) initially denied his claim. In 1999, however, after a series of psychiatric evaluations, Moore was granted service-connected benefits and assigned a 10 percent disability rating, effective September 16, 1992. In evaluating the extent of his psychiatric disability, the RO noted that prior to his discharge from the service, Moore “was reported to have gone ‘berserk’ and to have made superficial lacerations on his wrists.” The RO concluded, however, that a disability rating higher than 10 percent was not warranted because a “VA examination dated in November of 1996 revealed that the

2007-7306 2

event leading up to the veteran’s discharge was a single episode that was now resolved.”
Moore then appealed to the board. In August 2004, the board increased his disability rating to 30 percent for the period from January 27, 1997, to August 7, 2002, and to 50 percent for the period after August 8, 2002. The board held, however, that Moore was not entitled to a disability rating greater than 10 percent for the period from September 16, 1992, to January 26, 1997, concluding that he suffered from only “mild social and industrial impairment” during that period.
On appeal to the Veterans Court, Moore challenged the 10 percent disability rating for the period from September 16, 1992, to January 26, 1997, the 30 percent rating for the period from January 27, 1997, to August 7, 2002, and the 50 percent rating for the period beginning on August 8, 2002. He argued that the VA had an affirmative obligation, pursuant to 38 U.S.C. § 5103A, to obtain the medical records from his hospitalization at Tripler prior to making any rating determinations. In Moore’s view, such records would have given the VA “a more complete picture” of the extent of his psychiatric disability. 2007 Veterans Court Decision, 21 Vet. App. at 214.
The Veterans Court rejected Moore’s contentions. It held that the VA was not obligated to obtain his Tripler medical records because even if those records had been obtained they “would not help his claim.” Id. at 215. The relevant issue, according to the court, was the extent of Moore’s disability in the period after September 16, 1992, and in order to resolve that issue the board properly relied upon evidence relating to his disability during that period. The court further noted that the record contained a “description of [Moore’s] in-service symptoms” that was prepared eleven days after he

2007-7306 3

was discharged from Tripler and that he had failed to establish how the Tripler hospitalization records would be “meaningfully different” from the records the VA had already obtained. Id. at 216. Although the court acknowledged that it did not know “the precise content” of the Tripler hospitalization records, it concluded that failure to obtain them did not constitute reversible error since the record contained “substantial direct evidence” of the extent of Moore’s psychiatric disability in the period after September 16, 1992. Id. at 217.
Judge Kasold dissented, asserting that the Tripler medical records were “relevant on their face” and should have been obtained by the VA prior to making any rating determination. 2007 Veterans Court Decision, 21 Vet. App. at 221 (Kasold, J., dissenting). He noted that the VA was required, pursuant to 38 C.F.R. § 4.1, to evaluate a disability “in relation to its history” and that the VA could not have properly evaluated Moore’s claim for disability compensation because “a significant part of [his] medical history relevant to his psychiatric disability is simply missing.” 2007 Veterans Court Decision, 21 Vet. App. at 222 (Kasold, J., dissenting).
Moore then timely appealed. 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); see 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,

2007-7306 4

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. Peake, 543 F.3d 1301, 1304 (Fed. Cir. 2008); see Groves v. Peake, 524 F.3d 1306, 1310 (Fed. Cir. 2008).
I.
Moore argues that the VA had an affirmative obligation to obtain and evaluate the records of his hospitalization at Tripler prior to assigning him a disability rating. He contends that the Veterans Court misinterpreted 38 U.S.C. § 5103A when it held that service medical records are not relevant if they pre-date the period for which a veteran seeks disability compensation. We agree.
Section 5103A1 requires the VA to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim.” An integral part of this “duty to assist” is the VA’s obligation to obtain all of a veteran’s relevant service medical records before adjudicating a claim for disability compensation:
In the case of a claim for disability compensation, the assistance provided by the Secretary . . . shall include obtaining the following records if relevant to the claim: (1) The claimant’s service medical records and, if the claimant has furnished the Secretary information sufficient to locate such
1 In 1992, when Moore originally submitted his claim for benefits, the VA’s duty to assist veterans was codified in 38 U.S.C. § 5107(a), which provided that “[t]he Secretary shall assist . . . a claimant in developing the facts pertinent to his or her claim.” When Congress enacted section 5107(a), it “codified the VA’s obligation to assist claimants, which had existed in 38 C.F.R. § 3.103(a) since 1972.” Cook v. Principi, 318 F.3d 1334, 1337-38 n.4 (Fed. Cir. 2002) (en banc). The VA’s duty to assist claimants is now codified at 38 U.S.C. § 5103A, which was added by the Veterans Claim Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096, 2097. However, 38 C.F.R. § 3.103(a), the regulation setting forth the duty to assist, remains unchanged. See Cook, 318 F.3d at 1338 n.4.

2007-7306 5

records, other relevant records pertaining to the claimant’s active military, naval, or air service that are held or maintained by a governmental entity.
38 U.S.C. § 5103A(c)(1).
The Veterans Court held that the VA was not obligated to obtain and evaluate the records of Moore’s hospitalization at Tripler before making a determination as to the degree of his psychiatric disability. In the court’s view, the only pertinent issue was the degree of Moore’s disability after September 16, 1992, the date he filed his initial claim for benefits, and the Tripler medical records were not relevant because they pre-dated the period for which he sought disability compensation:
[T]he Court is not persuaded that the [service medical records] that [Moore] alleges should have been obtained would be relevant to any disputed issue, even if they were obtained. In other words, even if the [service medical records] were obtained and indicated that [Moore] displayed a symptom in service that was not observed in any of the postservice medical examinations, such records would not help his claim. He is simply not entitled to disability compensation for symptoms he experienced in service where those symptoms did not persist into the period for which he has been awarded compensation. The issue on appeal is what level of disability did [Moore] experience after September 16, 1992? To answer that question, the Board properly obtained and relied upon medical evidence from the period after September 16, 1992.
2007 Veterans Court Decision, 21 Vet. App. at 215 (citation omitted); see also Holliday v. Nicholson, No. 05-2899, 2007 U.S. App. Vet. Claims LEXIS 1225 (Vet. App. July 31, 2007) (citing the Veteran’s Court decision in the present case for the proposition that ‘‘when only disability rating is at issue, medical records preceding [the] time period for which compensation has been awarded are not relevant”).
The Veterans Court erred when it determined that Moore’s service medical records were not relevant because they pre-dated the period for which he sought disability compensation. By regulation, the VA is specifically required to assess a disability “in relation to its history” when making disability ratings determinations:

2007-7306 6

Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.
38 C.F.R. § 4.1,.
“Different examiners, at different times, will not describe the same disability in the same language” and “a change for the better or worse” in a veteran’s condition “may not be accurately . . . described” in a single report. See 38 C.F.R. § 4.2. Accordingly, “[i]t is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.” Id.; see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (evaluating a current disability in light of its complete recorded history “operate[s] to protect claimants against adverse decisions based on a single, incomplete or inaccurate report”).
Evaluation of a disability in light of its history is particularly important in the context of psychiatric disorders. Because “psychiatric disorders abate and recur,” the VA is obligated to evaluate them “not by reference to isolated periods of activity or remission, but by assessing the effects of the disease or injury over the history of the condition.” Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Thus, VA regulations specifically provide that a rating for a psychiatric disorder must be “based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126(a).
Although Moore is only entitled to disability compensation for the period after September 16, 1992, the date he filed his original claim for benefits, the clear mandate

2007-7306 7

of VA regulations is that a veteran’s disability must be evaluated in light of its whole recorded history. Moore seeks disability compensation for “the very same disability” that led to his hospitalization in the psychiatric ward at Tripler and his “[e]xpeditious administrative separation” from the military. The Tripler hospitalization occurred less than two years before the period for which he seeks disability compensation, and the records of his lengthy in-patient stay presumably contain both detailed information regarding Moore’s behavior and assessments from physicians regarding the severity of his underlying psychiatric disorder. See 2007 Veterans Court Decision, 21 Vet. App. at 221 (Kasold, J., dissenting) (noting that the records of Moore’s Tripler hospitalization “likely are far more descriptive of his disability than other, non-hospitalization records”). Without obtaining and evaluating the Tripler records, the VA could not make a fully informed decision regarding the degree of Moore’s psychiatric impairment. Cf. Schafrath, 1 Vet. App. at 594 (“Whether or not a disability has improved cannot be determined without reference to prior records detailing the history of the condition.”).
II.
On appeal, the government acknowledges that the Veterans Court erred to the extent it held that service medical records are not relevant if they pre-date the time for which a veteran is seeking disability compensation. See Br. of Respondent-Appellee at 8 (“[I]nsofar as the Veterans Court’s decision suggests that medical records pre-dating the claim are categorically irrelevant, that suggestion is incorrect and could benefit from clarification upon remand.”). The government asserts, however, that the VA’s failure to obtain Moore’s Tripler medical records was harmless error since: (1) the VA considered other documentation which summarized the Tripler hospitalization, and (2) Moore would

2007-7306 8

2 Although the record contains a “Discharge Note” showing that Moore was discharged from Tripler on January 3, 1991, it is entirely possible that Moore was given a copy of this document when he left the hospital and that it was he, rather than the VA, who put a copy of it in the record.

not have obtained a higher disability rating even if the VA had obtained and evaluated the Tripler records. We find neither argument persuasive.
A.
When evaluating Moore’s psychiatric disability, the VA considered five pages of medical records produced shortly after he was discharged from Tripler. The fact that the VA considered some of the relevant records, however, does not excuse the fact that it failed to consider all of them. As discussed above, the VA is statutorily required to obtain all of the veteran’s relevant service medical records, not simply those which it can most conveniently locate. See 38 U.S.C. § 5103A(c). Indeed, pursuant to 38 C.F.R. § 3.159(c)(2), the VA is specifically required to “make as many requests as are necessary to obtain” records that are in the possession of the federal government, such as a veteran’s service medical records.
The record on appeal does not establish that the VA made any effort to obtain the service medical records after Tripler failed to produce them.2 At oral argument, however, Moore’s attorney, Daniel P. Graham, announced that he had just the day before obtained a copy of the Tripler records. Graham explained that the records had been “lost in the bowels” of the National Personnel Records Center (“NPRC”) and that he had secured them only after repeated requests to both Tripler and the NPRC. We commend Graham, serving as counsel pro bono, for his tenacious efforts on his client’s behalf. We are mindful, however, that many veterans must navigate the “labyrinthine corridors of the veterans’ adjudicatory system” without the assistance of counsel. See

2007-7306 9

on other grounds, Comer v. Peake, No. 2008-7013, 2009 U.S. App. LEXIS 668, at *16 (Fed. Cir. Jan. 16, 2009). Because many veterans lack the knowledge and resources necessary to locate relevant records, Congress has appropriately placed the burden on the VA to ensure that all relevant service medical records are obtained and fully evaluated. See 38 U.S.C. § 5103A(c)(1); Hayre v. West, 188 F.3d 1327, 1331 (Fed. Cir. 1999), overruled Cook, 318 F.3d at 1338-40 (The VA must “make all possible efforts to obtain and assess records relevant to an evaluation of [a veteran’s] disability” (citation and internal quotation marks omitted) (emphasis in original)). It is shameful that the VA yet again failed in its duty to assist the veteran and, at best, poor judgment by the Department of Justice in defending the VA’s actions.
B.
We likewise reject the government’s assertion that Moore would not have obtained a higher disability rating even if the Tripler records had been obtained and evaluated. We fail to understand how the government, without examining the Tripler records, can have any idea as to whether they would, or would not, support Moore’s claim for an increased disability rating. See McGee v. Peake, 511 F.3d 1352, 1358 (Fed. Cir. 2008) (Section 5103A “simply does not excuse the VA’s obligation to fully develop the facts of [a] claim based on speculation as to the dispositive nature of relevant records.”).
Furthermore, as Judge Kasold correctly noted, the Tripler records are “relevant on their face” because Moore is seeking disability compensation for the same disability that led to his in-patient stay in the Tripler psychiatric ward. 2007 Veterans Court Decision, 21 Vet. App. at 221 (Kasold, J., dissenting). Given that Moore was

2007-7306 10 2007-7306 11

hospitalized after an apparent suicide attempt and was thereafter deemed unfit for retention in the military, the records of his hospitalization may well contain evidence that he suffers from a serious, and perhaps chronic, psychiatric disorder. Such records could potentially call into question the VA’s conclusion that Moore suffered from only “mild social and industrial impairment” and was therefore entitled to no more than a 10 percent disability rating in the period after September 1992. Thus, contrary to the government’s assertions, the Tripler records could well contain evidence sufficient to establish Moore’s entitlement to increased disability benefits.
CONCLUSION
Accordingly, the judgment of the United States Court of Appeals for Veterans Claims is reversed and the case remanded for further proceedings consistent with this opinion.
COSTS
Costs to appellant.
REVERSED AND REMANDED

Linda Blimes possibly the next head of Veterans Benefits Administration ?.

Here's hoping that the article is correct and the VA goes to a "honor system" for disability claims. The years of needless pain and suffering that this type of system would save is incalculable.

Full article at:
http://www.airforcetimes.com/news/2009/02/military_vba_claims_020209w/

Potential VA benefits chief has new ideas

By Rick Maze - Staff writer
Posted : Monday Feb 2, 2009 17:36:26 EST

A Harvard University researcher with some radical ideas about how to reduce the backlog of veterans disability claims appears to be in line to head the Veterans Benefits Administration.

Linda Blimes, a public policy lecturer and research at Harvard’s Kennedy School of Government, wants the Department of Veterans Affairs to operate like the Internal Revenue Service — on an honor system that trusts veterans claiming service-connected disabilities. All veterans claims would be approved as soon as they are filed, with a random audit conducted to “weed out and deter fraudulent claims,” Blimes told the House Veterans’ Affairs Committee in testimony in 2008.

Ninety percent of veterans disability claims end up being paid after they make it through the system, she said — proof, she said, that most veterans are asking only for what they deserve.