Wednesday, April 11, 2012
Chandler v. Shinseki, No. 2011-7030, Federal Circuit, Overrules Hartness v. Nicholson, 20 Vet.App. 216 (2006)
Excerpt from decision below:
"The Secretary of Veterans Affairs (“Secretary”) appeals
the decision of the U.S. Court of Appeals for Veterans
Claims (“Veterans Court”) finding Howard Chandler
entitled to a special monthly pension under 38 U.S.C.
§ 1521(e) (2001) in view of the Veterans Court’s interpretation
of 38 U.S.C. § 1513(a) (2006) in Hartness v. Nicholson,
20 Vet. App. 216 (2006). Chandler v. Shinseki, 24
Vet. App. 23 (2010). Because this court overrules the
Veterans Court’s decision in Hartness, this court reverses
and remands for further proceedings."
========================
"In sum, this court overturns the Veterans Court’s decision
in Hartness. Further, the plain language of sections
1513 and 1521 indicates that the parenthetical
exclusion of section 1513(a) applies to only the threshold
“permanently and totally disabled” requirement found in
section 1521(a). Accordingly, this court reverses and
remands"
=================
United States Court of Appeals
for the Federal Circuit
__________________________
HOWARD E. CHANDLER,
Claimant-Appellee,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellant.
__________________________
2011-7030
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-932, Judge Alan G.
Lance, Sr.
_________________________
Decided: April 11, 2012
_________________________
PAIGE M. WILLAN, Chadbourne & Parke, LLP, of New
York, New York, argued for claimant-appellee. With her
on the brief was THOMAS E. RILEY. Of counsel on the brief
was MARGARET C. BARTLEY, National Veterans Legal
Services, of Washington, DC.
SCOTT D. AUSTIN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellant. With him on the brief were TONY WEST,
CHANDLER v. DVA 2
Assistant Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN E. HOCKEY, JR., Assistant 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.
__________________________
Before RADER, Chief Judge, MOORE, Circuit Judge and
AIKEN, District Judge.*
Opinion for the court filed by Chief Judge RADER. District
Judge AIKEN concurs in the result.
RADER, Chief Judge.
The Secretary of Veterans Affairs (“Secretary”) appeals
the decision of the U.S. Court of Appeals for Veterans
Claims (“Veterans Court”) finding Howard Chandler
entitled to a special monthly pension under 38 U.S.C.
§ 1521(e) (2001) in view of the Veterans Court’s interpretation
of 38 U.S.C. § 1513(a) (2006) in Hartness v. Nicholson,
20 Vet. App. 216 (2006). Chandler v. Shinseki, 24
Vet. App. 23 (2010). Because this court overrules the
Veterans Court’s decision in Hartness, this court reverses
and remands for further proceedings.
I.
Howard Chandler (“Chandler”) is a U.S. Navy veteran
who served on active duty during the Korean Conflict and
receives pension benefits for non-service connected disabilities
that render him permanently and totally disabled.
In 1992, at the age of fifty-seven, Chandler began
receiving pension benefits under 38 U.S.C. § 1521(a) for
* The Honorable Ann L. Aiken, Chief Judge, United
States District Court for the District of Oregon, sitting by
designation.
CHANDLER v. DVA 3
non-service connected disabilities. Chandler has a combined
disability rating of 80% based on the following
ratable disabilities: prostate cancer (60%), osteoarthritis
of the right and left knees (10%), glaucoma/cataracts
(10%), hypertension (10%), hyperthyroidism (10%), and
major depressive disorder (10%). These disabilities
prevent him from maintaining employment, and thus
render him “permanently and totally disabled.” See 38
U.S.C. § 1502(a)(3) (“Unemployable as a result of disability
reasonably certain to continue throughout the life of
the person.”). He received a pension at the rate prescribed
by 38 U.S.C. § 1521(b).
In 2006, at seventy-one years old, Chandler applied to
a Regional Office (“RO”) of the Department of Veterans
Affairs (“VA”) for an enhanced pension under the special
monthly rate prescribed by 38 U.S.C. § 1521(e). In his
request, Chandler sought consideration for housebound
status under section 1521(e) because he was older than 65
years of age and had a disability rating of more than 60%.
Chandler explicitly relied on the Veterans Court’s decision
in Hartness to support his claim. The RO determined
that Chandler did not meet the requirements for the
special monthly pension and denied the claim. The RO
distinguished Hartness on the basis that Chandler was
originally granted a pension based on disability, not age.
Chandler filed an appeal with the Board of Veterans’
Appeals (“the Board”), which was denied because he had
received a pension under section 1521 before turning
sixty-five. In that case, he could not rely on section
1513(a) to remove the pension eligibility requirement of
section 1521(e).
Chandler appealed the Board’s decision to the Veterans
Court. Initially, the Veterans Court heard oral arguments
before a three-member panel, but sua sponte
CHANDLER v. DVA 4
issued an en banc decision. The Veterans Court addressed
Chandler’s eligibility to receive “a single pension
at the higher rate described in section 1521(e) rather than
the lower, basic rate.” Chandler v. Shinseki, 24 Vet. App.
23, 28 (2010). The Veterans Court specifically reconsidered
its recent decision in Hartness. The Veterans Court
highlighted three reasons to retain Hartness: (i) it was
“rightly decided in the first instance,” (ii) it did not affect
the ambiguity between sections 1513 and 1521, and (iii) it
deserved application of principles of stare decisis. Id. at
28-29. The Veterans Court also determined that the
purpose of section 1513(b) was to prevent a veteran from
collecting two pensions, i.e., pensions under both sections
1513 and 1521, “but it does not prevent a veteran from
receiving a higher pension under section 1513 simply
because he would be eligible only for a basic pension
under section 1521.” Id. at 30. Accordingly, the Veterans
Court reversed and remanded the Board’s decision.
The Secretary filed a timely appeal. This court has
jurisdiction under 38 U.S.C. § 7292 (2010).
II.
This court has jurisdiction to review a decision of the
Veterans Court “with respect to the validity of a decision
. . . on a rule of law or of any statute or regulation
. . . or any interpretation thereof (other than a
determination as to a factual matter) that was relied on
by the [Veterans Court] in making the decision.” Gaston
v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (citing 38
U.S.C. § 7292(a); Forshey v. Principi, 284 F.3d 1335, 1359
(Fed. Cir. 2002) (en banc), superseded on other grounds by
Veterans Benefits Act of 2002, Pub. L. No. 107-330,
§ 402(a), 116 Stat. 2820, 2832).
This court sets aside any decision of the Veterans
Court that is found to be “(A) arbitrary, capricious, an
CHANDLER v. DVA 5
abuse of discretion, or otherwise not in accordance with
law; (B) contrary to constitutional right, power, privilege,
or immunity; (C) in excess of statutory jurisdiction, authority,
or limitations, or in violation of a statutory right;
or (D) without observance of procedure required by law.”
38 U.S.C. § 7292(d)(1) (2010). This court reviews statutory
interpretations of the Veterans Court without deference.
See, e.g., Boggs v. Peake, 520 F.3d 1330, 1333 (Fed.
Cir. 2008). However, absent a constitutional issue, this
court may not review a factual determination or an application
of law to the facts. 38 U.S.C. § 7292(d)(2) (2010).
At the outset, this court detects no waiver of a challenge
to Hartness in this case. This court has the authority
to correct a statutory interpretation of the Veterans
Court when it was “relied on” to decide a case—even when
it was not contested below. See Forshey, 284 F.3d at 1350.
Because Hartness was an underlying premise for the
decision below, this court may address this issue of statutory
interpretation.
The Veterans Court in Hartness v. Nicholson, 20 Vet.
App. 216 (2006), addressed the interplay between 38
U.S.C. §§ 1513 and 1521. In Hartness, the Board rejected
Hartness’ application for special monthly pension benefits
because he did not have a single disability rated as permanent
and total under §1521(e) and 38 C.F.R. § 3.351(d).
On appeal, the Veterans Court found that the Board erred
in not applying § 1513(a), noting that “generally, where a
veterans benefit statute is ambiguous, ‘interpretive doubt
is to be resolved in the veteran’s favor.’” Hartness, 20 Vet.
App. at 220 (citing Gardner v. Brown, 513 U.S. 115, 118
(1994)). The Veterans Court determined that, by the
plain language of § 1513(a), “the requirement under
section 1521 that a veteran be permanently and totally
disabled or have a disability rated as permanent and total
is excluded” for a veteran who is at least 65 years old and
CHANDLER v. DVA 6
meets the service requirements of § 1521. Id. The Veterans
Court also held “that application of § 1513(a) results
in the exclusion of the permanent-and-total-disability
requirement in §§ 1521(a) and (e) when considering
whether a veteran 65 years of age or older is entitled to
non-service-connected disability pension.” Id. at 221.
The Veterans Court stated that its application of
§ 1513(a) to reconstruct the requirements of § 1521 was
“consistent with Congress’ intent to provide a pension to
veterans aged 65 years of age or older regardless of disability.”
Id. at 222. In a footnote, the Veterans Court
acknowledged that the permanent and total disability
requirements of subsections (a) and (e) of section 1521
were defined differently, but declined to explore the
implications of conflating their meanings. Id. at 221 n.2.
III.
The present appeal hinges on the proper construction
of 38 U.S.C. §§ 1513 and 1521 and the interplay between
those statutory sections. Section 1521 provides a pension
for wartime veterans with non-service-connected disabilities
who meet certain requirements. Under the statute,
however, a veteran only qualifies if “permanently and
totally disabled:”
The Secretary shall pay to each veteran of a period
of war who meets the service requirements of
this section . . . and who is permanently and totally
disabled from non-service connected disability
not the result of the veteran's willful
misconduct, pension at the rate prescribed by this
section . . . .
38 U.S.C. § 1521(a) (2001) (emphasis added). Section
1502 is titled “[d]eterminations with respect to disability”
and sets the requirements for such disability.
CHANDLER v. DVA 7
For the purposes of this chapter, a person shall be
considered to be permanently and totally disabled
if such person is any of the following:
(1) A patient in a nursing home for long-term care
because of disability.
(2) Disabled, as determined by the Commissioner
of Social Security for purposes of any benefits administered
by the Commissioner.
(3) Unemployable as a result of disability reasonably
certain to continue throughout the life of
the person.
(4) Suffering from--
(A) any disability which is sufficient to render it
impossible for the average person to follow a substantially
gainful occupation, but only if it is reasonably
certain that such disability will continue
throughout the life of the person; or
(B) any disease or disorder determined by the Secretary
to be of such a nature or extent as to justify
a determination that persons suffering therefrom
are permanently and totally disabled.
38 U.S.C. § 1502(a) (emphasis added).
The subsections of 1521 prescribe different pension
rates based on a veteran’s circumstances. Two pension
rates of section 1521 are relevant to the present appeal:
(b) If the veteran is unmarried . . . and there is no
child of the veteran in the custody of the veteran
or to whose support the veteran is reasonably contributing,
and unless the veteran is entitled to
pension at the rate provided by subsection (d)(1)
or (e) of this section, pension shall be paid to the
CHANDLER v. DVA 8
veteran at the annual rate of $3,550, reduced by
the amount of the veteran's annual income.
* * *
(e) If the veteran has a disability rated as permanent
and total and (1) has additional disability or
disabilities independently ratable as 60 per centum
or more, or (2) by reason of a disability or
disabilities, is permanently housebound but does
not qualify for pension at the aid and attendance
rate provided by subsection (d) of this section, the
annual rate of pension payable to the veteran under
subsection (b) of this section shall be $4,340 . .
. .
38 U.S.C. § 1521(b), (e) (2001) (emphasis added). Section
1521(b) provides a basic pension rate for wartime veterans
and section 1521(e) provides severely disabled wartime
veterans a special monthly pension under a special
monthly rate. Section 1521(e)’s requirement of “a disability
rated as permanent and total” is defined by 38 C.F.R.
§ 3.351(d) as “a single permanent disability rated 100
percent disabling.” In contrast, being “permanently and
totally disabled” under section 1521(a)’s eligibility requirements,
is defined as satisfying any one of four criteria
found in 38 U.S.C. § 1502(a), as recited above.
Section 1513 was promulgated after section 1521 and
provides wartime veterans who are sixty-five years of age
or older with section 1521 pension benefits. Section 1513
states, in pertinent part:
(a) The Secretary shall pay to each veteran of a
period of war who is 65 years of age or older and
who meets the service requirements of section
1521 of this title . . . pension at the rates prescribed
by section 1521 of this title and under the
CHANDLER v. DVA 9
conditions (other than the permanent and total
disability requirement) applicable to pension paid
under that section.
(b) If a veteran is eligible for pension under both
this section and section 1521 of this title, pension
shall be paid to the veteran only under section
1521 of this title.
(Emphasis added). Of particular importance, subsections
(a) and (e) of section 1521 include the phrases “permanently
and totally disabled” and “disability rated as
permanent and total,” respectively, but, section 1513
includes only the phrase “permanent and total disability”
without expressly stating which requirement of section
1521 it excludes.
At the outset, this court emphasizes the importance of
the statutory language. See, e.g., American Tobacco Co. v.
Patterson, 456 U.S. 63, 68 (1982); McEntee v. Merit Sys.
Prot. Bd., 404 F.3d 1320, 1328 (Fed. Cir. 2005). In this
case, the language of section 1513(a) carries great weight,
but even more important is its context in relation to
section 1521. The parenthetical exclusion within section
1513(a) (i.e., “other than the permanent and total disability
requirement”) closely parallels the language of section
1521(a), which requires a veteran to be “permanently and
totally disabled.” Section 1521(a)’s “permanently and
totally disabled” requirement serves as a threshold qualification
to receive various pension rates under that section.
Moreover, it applies to all the subsections of section
1521. This “permanently and totally disabled” requirement
receives a broad definition in a list of flexible criteria
set forth in section 1502(a). The parenthetical
exclusion, however, and section 1521(a)’s “permanently
and totally disabled” requirement are not identical.
CHANDLER v. DVA 10
The parenthetical exclusion is also not identical to
section 1521(e), which requires that a veteran have “a
disability rated as permanent and total” to qualify for the
special monthly pension rate. “[D]isability rated as
permanent and total” is defined by 38 C.F.R. § 3.351(d) as
“a single permanent disability rated 100 percent disabling.”
Section 1521(e) represents a separate requirement
beyond those of section 1521(a).
This court does not read section 1513(a) to waive the
requirements of both § 1521 subsections. The context and
features of the statutory language suggest that the parenthetical
in § 1513(a) does not waive the two completely
different requirements of § 1521. Specifically, the parenthetical
exclusion in § 1513(a) uses the definite article
“the,” which indicates that the exclusion refers to a single
§ 1521 requirement. See Warner-Lambert Corp. v. Apotex
Corp., 316 F.3d 1348, 1356 (Fed. Cir. 2003). Also, while
not dispositive by itself, when taken in context with the
statute as a whole, the use of the singular term “requirement”
in the parenthetical exclusion indicates that the
Act only contemplates excluding one of the section 1521
requirements.
Section 1521 contains two different permanent and
total disability requirements that have two different
meanings. Section 1513 was enacted after 38 C.F.R.
§ 3.351, which made clear the two different requirements
of § 1521. Moreover, section 1521(e) states its requirement
in different terms, indicating that the subsection (e)
requirement is separate from the “permanently and
totally disabled” requirement in subsection (a). These
distinctions in contextual placement and language prevent
this court from conflating the two definitions in one.
This court also declines to render one of the phrases
meaningless. See TRW Inc. v. Andrew, 534 U.S. 19, 31
(2001) (stating that no clause should be superfluous);
CHANDLER v. DVA 11
Bailey v. United States, 516 U.S. 137, 146 (1995) (“We
assume that Congress used two terms because it intended
each term to have a particular, nonsuperfluous meaning.”).
In direct terms, the statute dictates that a permanently
and totally disabled veteran for one purpose may
not have a disability rated as permanent and total for
another purpose. See Chandler, 24 Vet. App. at 34
(Kasold, C.J., dissenting).
This court concludes § 1513(a) only eliminates the
permanent and total disability requirement in § 1521(a),
which applies to all § 1521 subsections. The language of
section 1521 is structured so that subsection (a) is a
threshold requirement and the other subsections recite
additional requirements for a veteran to qualify for different
pension rates. As such, § 1521’s language and structure,
when viewed in light of the statute’s purpose and
meaning, suggest that the parenthetical exclusion in
section 1513(a) refers only to the threshold requirement
found in section 1521(a) for pension benefits under § 1521
and not to the additional requirements imposed by
§ 1521(e).
Based on the statutory language and structure, this
court therefore rejects and overrules the Veterans Court’s
Hartness opinion. Otherwise, Hartness introduces the
possibility of the absurd result indentified by the Veterans
Court wherein similarly situated veterans are treated
differently under the pension provisions depending on
when they first started receiving a pension. 24 Vet. App.
at 24. Veterans applying for special monthly pension
benefits under section 1521(e) should be on equal footing
regardless of when they apply for a pension, i.e., whether
the veteran applies before or after turning sixty-five years
old. Thus, section 1513(b) shows that Hartness was
incorrectly decided. This court’s statutory construction
CHANDLER v. DVA
12
and rejection of Hartness avoids this potential for absurd
results.
IV.
In sum, this court overturns the Veterans Court’s decision
in Hartness. Further, the plain language of sections
1513 and 1521 indicates that the parenthetical
exclusion of section 1513(a) applies to only the threshold
“permanently and totally disabled” requirement found in
section 1521(a). Accordingly, this court reverses and
remands
REVERSE AND REMAND
Single Judge Application, CUE Assertions filed by Counsel, No Liberal Reading, Massie v. Shinseki, 25 Vet.App. 123, 131 (2011)
Excerpt from decision below:
"Moreover, assertions of CUE raised by counsel are not entitled to a liberal reading, see Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (distinguishing between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant), presumably in part because counsel are deemed to know the law and state their case, see Massie v. Shinseki, 25 Vet.App. 123, 131 (2011); MODEL RULES OF PROF'L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules of Professional Conduct as disciplinary standard for practice)."
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 10-1523
CHARLES E. CHASTAIN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran Charles E. Chastain appeals through counsel
two
January 22, 2010, decisions of the Board of Veterans' Appeals (Board) that (
1) denied a request for
revision of a 1970 regional office (RO) decision based on clear and
unmistakable error (CUE), (2)
denied a request for revision of a 1996 Board decision based on CUE, and (
3) determined Mr.
Chastain was not entitled to an effective date earlier than August 27,
2001, for service connection
of his low-back disability. Mr. Chastain argues that the 2010 Board erred
by determining that (1)
there was no CUE in the 1970 rating decision, (2) there was no CUE in a
1992 RO decision that
denied reopening of the original claim, or in the 1996 Board decision
affirming the 1992 RO
decision, and (3) the 1996 Board decision was final. The Secretary
disputes these contentions.
Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the
reasons stated below, the decision of the Board will be affirmed.
I. CUE in the 1970 Rating Decision
With regard to Mr. Chastain's first argument, the 2010 Board determined that his complete service medical records were not before the RO, but further determined that absent this error there nevertheless would not have been a manifestly changed outcome. See MacKlem v. Shinseki, 24
Vet.App. 63 (2010) (to constitute CUE, the error must be "'undebatable,
so that it can be said that
reasonable minds could only conclude that the original decision was
fatally flawed at the time it was
made'") quoting Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc
))); Fugo v. Brown, 6
Vet.App. 40, 43-44 (1993) (To constitute CUE, the error must "compel[] the
conclusion, to which
reasonable minds could not differ, that the result would have been
different but for the error" and
"persuasive reasons must be given as to why the result would have been manifestly different").
In the decision on appeal, the 2010 Board noted that the record at the time of the RO decision
contained an April 1970 x-ray report that found no abnormality other than spina bifida. In contrast, the Board found that a February 1970 medical record that was not before the RO reflected a possible
diagnosis ofspondylolysis, and Mr. Chastain's
February 1970 serviceseparationexamination report,
which also was not before the RO, noted that Mr. Chastain had
spondylolysis on the left side but
contained no explanation for that notation. The Board noted that the
evidence was in dispute such
that reasonable minds could differ over the result, and therefore the
error did not constitute CUE
because a manifestly changed outcome was not undebatable. Based on the
record on appeal, the
Board's determination is not arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law, and the Board's statement is understandable and
facilitative of judicial review.
See MacKlem, 24 Vet.App. at 69 ("On appeal of a Board determination that there was no CUE in
a prior final RO decision, this Court's review is limited to determining whether the Board decision
was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' including
whether the decision is supported by an adequate statement of reasons or bases."); Allday v. Brown,
7 Vet.App. 517, 527 (1995)(Board's statement "must be adequate to enable a claimant to understand
the precise basis for the Board's decision, as well as to facilitate
review in this Court"); see also
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 303-04 (2008) ("It is the
factually accurate, fully
articulated, sound reasoning for the conclusion . . . that contributes
probative value to a medical opinion.").
As an assertion of error, Mr. Chastain contends that the 2010 Board erred in finding no CUE
because to find CUE it required all relevant evidence to militate in
support of a manifestly changed
outcome. Assuming arguendo that such an understanding might be erroneous under the law, a fair
reading of the entire Board decision reflects that it properly stated and understood that CUE could
2
only be established if reasonable persons could not disagree that the
outcome would have been
manifestly different but for the error. As noted above, the 2010 Board found that the evidence was
in dispute and that reasonable persons could differ as to the outcome;
this is a correct understanding
of the law. MacKlem, 24 Vet.App. at 63; Fugo, 6 Vet.App. at 43-44; see also Damrel v. Brown, 6
Vet.App. 242, 246 (1994) (allegation of improperly weighing the evidence can never form the basis
of CUE).
As a second assertion of error, Mr. Chastain contends that the 2010 Board placed an unfair
burden on him to demonstrate CUE when it determined that it was not clear what clinical evidence
supported the notation of spondylolysis on his separation examination. Mr.
Chastain reasons that
because "the diagnosis was ignored by the rating official, it makes little difference that the diagnosis
was not further explained or documented." Appellant's Brief (Br.) at 14.
However, the burden of
demonstrating CUE is a high one and this is because it is a collateral attack on an otherwise final
decision. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed . Cir. 2000); Fugo, 6
Vet.App. at 44 ("Persuasive reasons must be given as to why the result would have been manifestly
different . . . ."). Moreover, whether or not a decision contains CUE is predicated on the facts known
at the time of the decision in which CUE is asserted, Bouton v. Peake, 23 Vet.App. 70, 71 (2008),
and when those facts lack clarity or are otherwise not undebatable, then they cannot establish CUE,
MacKlem, 24 Vet.App. at 63; Fugo, 6 Vet.App. at 43-44; Damrel, 6 Vet.App. at 246; see also Cook
v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002) (en banc) (stating that the failure in duty to
assist cannot form basis for CUE).
Mr. Chastain also argues that the 2010 Board erred by improperly rejecting a 2003 affidavit
of Dr. Namm because it was not in the record that existed at the time of the 1970 RO decision.
However, it is well settled law that CUE determinations are based on the record before the RO or
on the correct facts extant at the time of the RO decision, and evidence
developed after the decision
under attack may not be used to demonstrate CUE in that decision. MacKlem, 24 Vet.App. at 68,
Bouton, 23 Vet.App. at 71; see also Cook, 318 F.3d at 1343.
To the extent Mr. Chastain's appeal encompasses an argument that the 2010 Board erred by
not considering that the 1970 RO erred by not addressing aggravation, the record reflects that any
such error by the 2010 Board nevertheless is not prejudicial. Newhouse v. Nicholson, 497 F.3d1298,
3
1301 (Fed. Cir. 2007) (holding that the Court reviews record to assess prejudice). Specifically, the
2010 Board's finding that reasonable persons could differ over whether Mr. Chastain had
spondylolysis necessarily means that Mr. Chastain's asserted aggravation – spondylolysis – is itself
reasonably debatable and insufficient to establish the manifestly changed outcome required to find
CUE. MacKlem, 24 Vet.App. at 63; Fugo, 6 Vet.App. at 43-44; Damrel, 6 Vet. App. at 246; see
also Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (remand unnecessary when it "would result
in this Court's unnecessarily imposing additional burdens on the [Board and the Secretary] with no
benefit flowing to veteran").
II. CUE in the 1992 RO decision
Mr. Chastain's assertions of error by the 2010 Board with regard to his assertions of CUE in
the 1992 RO decision are inapposite. The 2010 Board found that the 1992 RO was subsumed in
the 1996 Board decision that affirmed the RO decision. Because the 1992 rating decision was
subsumed by the 1996 Board decision, allegations of error in the 1992
rating decision cannot be
collaterally attacked by motions for revision based on CUE, and any
allegation of 2010 Board error
with regard to CUE in the 1992 RO decision will not be further addressed. See Manning v. Principi, 16 Vet.App. 534, 450 (2002) (noting that subsumed RO decisions cannot be collaterally attacked by
motion for revision based on CUE).
III. CUE in the 1996 Board Decision
Mr. Chastain's argument that the 2010 Board erred by not finding CUE in the 1996 Board
decision is premised on his contention that the 1996 Board misunderstood the nature of his claim
and therefore failed to apply the correct analysis. Specifically, Mr.
Chastain argues that (1) his
counsel told his Board hearing officer that "the VA was misinterpreting the claim as one for service
[-]connected spina[ bifida]," instead of one for aggravation of spina
bifida as reflected byhis having
spondylolysis, and (2) this, along with other allegations made below,1 constituted an assertion of
Mr. Chastain also points to (1) a 1995 letter that he sent to the RO, (2) an August 3, 2001, affidavit in
which he notes that in the 1995 letter he told the RO that he had filed for a "'service-aggravated disability', not a
'service-connected disability,'" and (3) two memoranda to the Board in support of his appeal now on review.
However, the 1995 letter was before the 1996 Board decision, the August 3, 2011, affidavit does not assert any CUE
arguments, and, as discussed infra at 6, the 2010 Board adequately
addressed the CUE arguments made in the
memoranda.
1
4
CUE in the 1996 Board decision that the 2010 Board erroneously did not address. The Secretary
asserts that the Court does not have jurisdiction over this allegation of CUE because it was not raised
below.
Although CUE does not require "pleading with exactitude," Jordan v.
Principi, 17 Vet.App. 261, 270-71 (2003) (finding that although "the liberal construction of a VA claimant's pleading must
be tempered somewhat in CUE cases" that "does not require pleading with exactitude" (emphasis
in the original)), it nevertheless must be plead with "some degree of
specificity," Andre v. Principi,
301 F.3d 1354, 1361 (Fed. Cir. 2002). Moreover, assertions of CUE raised by counsel are not entitled to a liberal reading, see Robinson v. Shinseki, 557 F.3d 1355 ( Fed. Cir. 2009) (distinguishing
between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant),
presumably in part because counsel are deemed to know the law and state their case, see Massie v. Shinseki, 25 Vet.App. 123, 131 (2011); MODEL RULES OF PROF'L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model
Rules of Professional Conduct as disciplinary standard for practice).
Contrary to Mr. Chastain's assertion, the record reflects confusion
regarding what errors his
counsel asserted below. The only clearly asserted errors at the hearing were that the 1970 RO failed
to adjudicate a theoryof entitlement to benefits based on aggravation of
Mr. Chastian's spina bifida,2
and that this error was compounded in subsequent decisions, including a
1996 decision. Read as a
whole, and in context of the decision rendered in Mr. Chastain's case, it
can be determined that
counsel was referring to an error in the 1996 Board decision that denied
reopening his claim, but he
provided no "degree of specificity" as to what that error was, and it is
unclear what that error might
be.
The record of proceedings reflects that the 1996 Board denied reopening
his claim because
Mr. Chastain had not presented new and material evidence. Assuming
arguendo that a failure to
reopen can constitute the manifestlychanged outcome required to establish
CUE, compare Chippen
As indicated in the text, supra at 4, Mr. Chastain's briefing to the Court
does not specifically assert 2010
Board error in not addressing a failure of the 1970 RO to address
aggravation, but, also as noted, even assuming Mr.
Chastain's briefing can be read to make such an argument, it fails.
2
5
v. Brown, 9 Vet.App. 412, 422 (1996) (equating manifestly changed outcome
with a change in the
merits outcome and finding that a manifestlychanged outcome requires a
finding that the underlying
claim for benefits would be granted), with Walker v. Peake, 2008 WL
4221491, at *5 (Vet. App.
Sept. 4, 2008) (per curiam order) (Kasold, J., dissenting) (suggesting
that the reopening and
processing of a claim is a manifestly changed outcome), Mr. Chastain does
not point to anything in
the record that reflects an assertion that the 1996 Board erred in its
determination that new and
material evidence had not been presented. Indeed, the record reflects
counsel's view that the
evidence of aggravation was present when Mr. Chastain filed his claim in
1970, such that it would
not be new and material, as the 1996 Board found.3
Incontrast totheconfusingdiscussionreflectedinthehearingrecord,Mr.
Chastainotherwise
presented two assertions of CUE in the 1996 Board decision that were
addressed bythe 2010 Board.
Mr. Chastain makes no assertion that the 2010 Board erred in its decision
as to these two assertions
of CUE. Succinctly stated, Mr. Chastain fails to demonstrate that the 2010
Board failed to address
any assertion of CUE in the 1996 Board decision raised by him, the hearing
record, or the record of
proceedings. Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (
appellant bears burden of
demonstrating error on appeal); see also Andre, supra.
IV. Finality of the 1996 Board Decision
Mr. Chastain's argument that the 1996 Board decision is not final is
premised on his
contention that the RO failed to issue him a Supplemental Statement of the
Case (SSOC) following
a 1995 Board remand of the 1992 RO decision. However, the record reflects
that an October 13,
1995, SSOC was mailed to Mr. Chastain's address of record on October 16,
1995, and a complete
copyof his claims file was mailed to his address on January29, 1996. The
presumption of regularity
applies to the Secretary's mailing of the SSOC and therefore Mr. Chastain
must show that the
presumption is rebutted by"clear evidence." See Clarke v. Nicholson, 21
Vet.App. 130, 133 (2007)
(applying the presumption of regularity to the mailing of an RO decision);
see also Ashley v.
It is clear from the briefing filed on behalf of Mr. Chastain and the
filings below made on his behalf that
counsel is confused and fails to understand the difference between
reopening a claim based on new and material
evidence and revising a decision based on CUE.
3
6
Derwinski, 2 Vet.App. 307, 309 (1992) (presumption of regularity may be
overcome only by the
submission of "clear evidence to the contrary").
Although Mr. Chastain provided an affidavit to the Board alleging that he
never received an
SSOC from the RO, such an assertion standing alone does not rebut the
presumption of regularity.
Jones v. West, 12 Vet.App. 98, 102 (1998)("[A]ssertionofnonreceipt,
standingalone,doesnot rebut
the presumption of regularity in VA's mailing process."). Mr. Chastain
attempts to bolster his
argument by pointing to a letter he wrote, in which he stated that he did
not receive a different VA
correspondence dated March 1995; however, a review of the record or
proceedings reflects that Mr.
Chastain's letter was written in response to the SSOC he now claims he did
not receive. Compare
R. at 884 (letter from Mr. Chastain stating "in response to your letter
dated October 16, 1995"), with
R. at 915-22 (October 13, 1995, SSOC with an October 16, 1995, date stamp).
Mr. Chastain's letter
supports the conclusion that he did in fact receive the SSOC. Mr. Chastain
fails to demonstrate
Board error. Hilkert and Ashley, both supra.
V. Conclusion
Upon consideration of the forgoing, the Board's January 22, 2010 decisions
are AFFIRMED.
DATED:
March 28, 2012
Copies to:
Mark B. Leadlove, Esq.
VA General Counsel (027)
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