Kiersey v. Dept. Of Veterans Affairs , 486 F. App'x 114 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MIKELL L. KIERSEY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7082
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-4525, Judge John J.
Farley, III.
__________________________
Decided: June 11, 2012
___________________________
MIKELL L. KIERSEY, of East Granby, Connecticut, pro
se.
JEFFREY D. KLINGMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
KIERSEY v. SHINSEKI 2
Director, and TODD M. HUGHES, Deputy Director. Of
counsel on the brief were MICHAEL J. TIMINSKI, Deputy
Assistant General Counsel and AMANDA R. BLACKMON,
Attorney, United States Department of Veterans Affairs,
of Washington, DC
__________________________
Before LINN, PLAGER, and DYK, Circuit Judges.
PER CURIAM.
Mikell L. Kiersey (“Kiersey”) appeals from a judgment
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”) sustaining a decision of the Board of
Veterans’ Appeals (“the Board”). The Board denied Kier-
sey’s claims for earlier effective dates of service connec-
tion for lumbosacral disk disease, gastritis, and post-
traumatic stress disorder (“PTSD”). Kiersey v. Shinseki,
No. 09-4525, 2011 WL 5921543 (Vet. App. Nov. 29, 2011).
Because the Veterans Court did not commit legal error in
determining that there was no clear and unmistakable
error (“CUE”) in previous regional office (“RO”) decisions
denying service connection, we affirm.
BACKGROUND
Kiersey served on active duty in the U.S. Air Force
from June 1971 to December 1974. His service medical
records (“SMRs”) showed complaints of abdominal pain,
gastritis, and low back pain. The SMRs also showed that
he was assessed with a personality disorder in June 1974.
Kiersey’s separation examination in December 1974
reflected complaints of depression, excessive worry, and
nervous troubles, as well as diagnoses of acute gastritis
and lumbosacral strain.
At various times beginning in 1975, Kiersey sought
service connection for low back disability, gastritis, and
3 KIERSEY v. SHINSEKI
PTSD. His claims were rejected by the RO in several
decisions, which were not appealed and became final. See
38 U.S.C. § 7105(c). However, in December 2007, based
on new and material evidence, the RO granted Kiersey
service connection for PTSD, effective February 28, 2006,
and for gastritis and lumbosacral disc disease, effective
July 7, 2006. Kiersey challenged the December 2007 RO
decision for the failure to grant earlier effective dates for
his service-connected claims. In April 2008, the RO
denied his claims for earlier effective dates. Kiersey
appealed the April 2008 RO decision to the Board, alleg-
ing CUE in, inter alia, the September 1978 and Septem-
ber 1985 RO decisions. After holding a hearing, the
Board found no CUE in the previous RO decisions and
denied earlier effective dates for the grant of service
connection for low back disability, gastritis, and PTSD.
Kiersey appealed the Board’s decision to the Veterans
Court. The Veterans Court sustained the Board’s deci-
sion. Kiersey timely appealed to this Court. We have
jurisdiction pursuant to 38 U.S.C. § 7292(c).
DISCUSSION
Under 38 U.S.C. § 7292(a), we have appellate jurisdic-
tion “with respect to the validity of a decision of the
[Veterans] Court on a rule of law or of any statute or
regulation . . . or any interpretation thereof . . . that was
relied on by the [Veterans] Court in making the decision.”
In reviewing a Veterans Court decision, we must decide
“all relevant questions of law . . . [and] shall hold unlaw-
ful and set aside any regulation or any interpretation
thereof (other than a determination as to a factual mat-
ter) that . . . [we] find[] to be—(A) arbitrary, capricious, an
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, au-
thority, or limitations, or in violation of a statutory right;
KIERSEY v. SHINSEKI 4
or (D) without observance of procedure required by law.”
Id. § 7292(d)(1).
An RO decision that has become final generally may
not be reversed or amended in the absence of CUE. See
38 U.S.C. § 5109A. To establish CUE, a claimant must
show (1) that either the facts known at the time were not
before the adjudicator or that the law then in effect was
incorrectly applied, and (2) that had the error not been
made the outcome would have been manifestly different.
See Cushman v. Shinseki, 576 F.3d 1290, 1301 (Fed. Cir.
2009); see also Cook v. Principi, 318 F.3d 1334, 1343 (Fed.
Cir. 2002). A determination that there is CUE must be
based upon the record and the law that existed at the
time of the prior adjudication in question. Cook, 318 F.3d
at 1343; Guillory v. Shinseki, 669 F.3d 1314, 1319 (Fed.
Cir. 2012).
Kiersey contends that an RO decision in September
1978 denying service connection for low back disability
and gastritis contained CUE. The Veterans Court in this
case found that pursuant to the regulations extant at the
time of the decision, 38 C.F.R. §§ 3.158(b), 3.329 (1978),
the RO correctly determined that Kiersey had abandoned
his claim for service connection when he failed to report
for the scheduled examination. Kiersey, 2011 WL
5921543, at *4-5. It also found that to the extent there
was evidence of record independent of the requested
physical examination that demonstrated gastritis, Kier-
sey’s challenge involved the re-weighing of the facts before
the RO, which is insufficient to establish CUE. Id. at *5.
The Veterans Court did not err in concluding that
there was no CUE in the September 1978 RO decision.
Under the regulations in place in 1978, “[e]very person
applying for or in receipt of compensation or pension shall
submit to examinations . . . when required by the Veter-
5 KIERSEY v. SHINSEKI
ans Administration.” 38 C.F.R. § 3.329 (1978). Section
3.158(b) provided that “[w]here the veteran fails without
adequate reason to respond to an order to report for
Veterans Administration examination within 1 year from
the date of request and payments have been discontinued,
the claim for such benefits will be considered abandoned.”
38 C.F.R. § 3.158(b) (1978). Kiersey argues that section
3.158(b) does not apply to his situation because he was
not in receipt of any VA payments in 1978, and thus he
does not meet the condition that “payments have been
discontinued” for the claim to be considered abandoned.
The VA, however, has interpreted section 3.158(b) to
apply in situations such as the present one, see VA Adju-
dication Procedures Manual Rewrite M21–1MR, Part IV,
Subpart ii, Chapter 3, Section B, 3-B-14, and the VA’s
interpretation of its own regulation is due substantial
deference. See Thomas Jefferson Univ. v. Shalala, 512
U.S. 504, 512 (1994); Smith v. Shinseki, 647 F.3d 1380,
1384-85 (Fed. Cir. 2011). We do not find the agency’s
interpretation to be “plainly erroneous or inconsistent
with the regulation.” Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 414 (1945); see also Smith, 647 F.3d at
1384-85 (holding that a VA interpretation in the Adjudi-
cation Procedures Manual was “controlling” because it
was not plainly erroneous or inconsistent with the regula-
tion).
Kiersey also contends that a later 1985 RO decision
denying service connection for low back disability, gastri-
tis, and PTSD contained CUE. The Veterans Court
agreed with the Board that Kiersey had not submitted
sufficient medical nexus evidence of a relationship be-
tween his low back and gastritis disabilities and his
service, and thus it could not be said that he had estab-
lished entitlement to service connection as required to
find CUE. Kiersey, 2011 WL 5921543, at *6. The Veter-
KIERSEY v. SHINSEKI 6
ans Court also found that the evidence submitted by
Kiersey with respect to PTSD, including the assessment
of a personality disorder in 1974 and the statements in
his separation examination with respect to depression,
worry, and nervousness, were insufficient to establish a
diagnosis of PTSD, which was a necessary element for the
grant of service connection under the extant law. Id.With respect to the denial of service connection for
low back disability and gastritis, although Kiersey may
have submitted some evidence that these conditions
existed prior to 1985, Kiersey’s appeal seeks to reweigh
the evidence of service connection that existed in 1985,
which is impermissible in a CUE claim. It is also an issue
outside of our jurisdiction. See 38 U.S.C. § 7292(d)(2);
Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004).
With respect to his claim for PTSD, Kiersey argues
that he was diagnosed with PTSD prior to February 28,
2006, and thus it was CUE to not establish an earlier
effective date. Specifically, he alleges that he had a
diagnosis of PTSD on February 16, 1995. CUE must be
established based on the record before the RO at the time
of its decision. Cook, 318 F.3d at 1343. Because this
diagnosis occurred, if at all, after the September 1985 RO
decision, it is not relevant to determining whether there
was CUE in that decision. Under applicable regulations
in 1978, service connection could only be granted where a
disease had been diagnosed. See 38 C.F.R. § 3.303(d).
Kiersey does not claim that such diagnosis existed prior to
1985, and the question whether such a diagnosis existed
is an issue outside our jurisdiction.
Kiersey also submits that he sought to reopen his
claim for service connection for PTSD on December 7,
1998, thus establishing an earlier effective date for his
service connected PTSD. The appeal to the Board in the
7 KIERSEY v. SHINSEKI
present case addressed only CUE in the 1978 and 1985
RO decisions. The argument that a request to reopen this
claim in 1998 established an earlier effective date cannot
first be raised on appeal to this court.
COSTS
No costs.