Roth v. Shinseki , 358 F. App'x 154 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7139
UGENE M. ROTH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Ugene M. Roth, of New York, New York, pro se.
Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for Respondent-Appellee
Eric K. Shinseki, Secretary of Veterans Affairs. With her on the brief were Tony West,
Assistant Attorney General; Jeanne E. Davidson, Director; and Brian M. Simkin,
Assistant Director. Of counsel on the brief were David Barrans, Deputy Assistant
General Counsel and Christa A. Shriber, Staff Attorney, Department of Veterans Affairs,
of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Lawrence B. Hagel
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7139
UGENE M. ROTH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 07-0307,
Judge Lawrence B. Hagel.
___________________________
DECIDED: December 16, 2009
___________________________
Before NEWMAN, BRYSON, and MOORE, Circuit Judges.
PER CURIAM.
DECISION
Ugene M. Roth appeals from a judgment of the United States Court of Appeals
for Veterans Claims (“the Veterans Court”), which affirmed a decision of the Board of
Veterans’ Appeals denying an earlier effective date for the award of benefits for post-
traumatic stress disorder (“PTSD”). We affirm.
BACKGROUND
Mr. Roth served in the United States Army from October 1968 to May 1970. On
April 22, 1993, Mr. Roth submitted a claim for benefits for PTSD from which he claimed
to have suffered since the 1970s. Service connection was granted by a regional office
of the Department of Veterans Affairs (“DVA”) in 1994. Mr. Roth was assigned a 30
percent disability rating effective April 22, 1993, the date of his claim. He appealed from
the assigned disability rating and successfully obtained an increased rating of 100
percent.
Mr. Roth appealed again with respect to the effective date assigned to his grant
of benefits. While that appeal was pending, the DVA General Counsel determined that
the agency’s recognition of PTSD as a mental disorder in 1980 was a “liberalizing VA
issue.” DVA Op. Gen. Counsel Prec. 26-97 (1997). The regulation applicable in the
event of a “liberalizing law or a liberalizing VA issue,” 38 C.F.R. § 3.114(a), provides for
payment of retroactive benefits for a period of up to one year. When a veteran such as
Mr. Roth requests review of his claim more than one year after the effective date of the
liberalizing VA issue, retroactive payments are authorized for one year prior to the
receipt of his claim. Id. § 3.114(a)(3). 1 Accordingly, in February 2000 the regional
office extended Mr. Roth’s effective date back by one year to April 22, 1992.
1
When a claim is reviewed within one year after the effective date of the
liberalizing law or VA issue, either on the initiative of the DVA or at the request of the
claimant, benefits are authorized from the effective date of the law or VA issue in
question. 38 C.F.R. § 3.114(a)(1). When a claim is reviewed on the initiative of the
DVA more than one year after the effective date of the law or VA issue in question,
benefits may be authorized for a period of one year prior to the date of administrative
determination of entitlement. Id. § 3.114(a)(2).
2009-7139 2
Mr. Roth continued to press his argument on appeal that a claim was filed
regarding his PTSD as early as 1979 or 1980 and that the effective date of his benefits
should be adjusted accordingly. The Board ultimately denied that claim in January 2007
after several remands to the regional office for factual investigation. The Board
considered three pieces of evidence submitted by Mr. Roth: (1) a DVA Form 10-7978a
dated September 1980 and containing a social worker’s report; (2) a DVA Form
10-7131 dated February 1979 and entitled “Exchange of Beneficiary Information and
Request for Administrative and Adjudicative Action”; and (3) an undated DVA
identification card with Mr. Roth’s file number for benefits. The Board first dismissed Mr.
Roth’s argument that he had filed a formal claim with the social worker. Mr. Roth
conceded that he had no documentary evidence of such a claim, but he argued that the
pertinent documents must have been lost or destroyed by the agency. The Board held
that the DVA was entitled to a presumption of regularity in the absence of clear and
convincing evidence to the contrary, and that Mr. Roth had presented no rebutting
evidence for how that documentation might have disappeared. The Board then ruled
that none of the three documents could be considered an informal claim under 38
C.F.R. § 3.155(a) because they did not reflect an intent to apply for benefits nor did they
identify a specific benefit sought. Because the Board found that those documents
provided no support for a claim filing date earlier than April 22, 1993, it held that the
benefit-of-the-doubt doctrine under 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 did not
apply to its consideration of the issue before it.
The Veterans Court affirmed, holding that the Board’s conclusions regarding the
three documents constituted findings of fact that were not clearly erroneous. The
2009-7139 3
Veterans Court also held that the Board did not err in refusing to apply the benefit-of-
the-doubt doctrine, because that doctrine applies only when there is an approximate
balance of positive and negative evidence, whereas all of Mr. Roth’s evidence as to
whether he had filed a claim earlier than April 22, 1993, was effectively discounted by
the Board as either negative or speculative evidence.
DISCUSSION
Mr. Roth raises a number of arguments in support of his assertion that a claim for
PTSD was filed prior to April 22, 1993.
First, he argues that when the Board extended his effective date by one year
pursuant to 38 C.F.R. § 3.114(a), it made a factual finding that he met all of the required
criteria for service connection in 1980. That determination, Mr. Roth contends, should
have been binding as a matter of res judicata on the issue of whether he filed a claim for
benefits at that time.
Mr. Roth’s res judicata argument fails because the question whether a veteran’s
disability is service connected is distinct from whether a claim for benefits has been
filed. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (medical
records reflecting diagnosis and treatment are not sufficient to state a claim for
benefits). Mr. Roth contends that meeting the required eligibility criteria for service
connection as of 1980 “supports [his] testimony of the events surrounding 1980.” While
the Board is entitled to take Mr. Roth’s medical diagnosis into consideration in
assessing the overall credibility of his testimony, the diagnosis itself does not establish
that he filed a claim for benefits in 1980.
2009-7139 4
Second, Mr. Roth disputes the Board’s reliance on the “presumption of
regularity,” which he attacks as unreasonable because it implies that the DVA never
loses or misplaces documents, and because the DVA has acknowledged (according to
Mr. Roth) “the systematic shredding of vital documents in veterans claims.” Both the
Board and the Veterans Court correctly stated that the DVA is entitled to a presumption
of regularity “in the absence of clear evidence to the contrary.” United States v. Chem.
Found., Inc., 272 U.S. 1, 14-15 (1926); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir.
2001). As the Veterans Court explained, the “presumption of regularity does not
presume that the DVA never loses claims forms.” Rather, it simply places the burden of
proof on the claimant to provide clear evidence of such loss when that is the basis for
the claimant’s case. Here, Mr. Roth produced no evidence, let alone clear evidence, to
explain the absence of documentation of the formal claim that he alleges was filed or
should have been filed by the social worker.
Third, Mr. Roth asserts that the Board erred in refusing to grant him the benefit of
the doubt, as required by the statutory “benefit of the doubt” rule, codified at 38 U.S.C.
§ 5107(b), and the implementing regulation, 38 C.F.R. § 3.102. Both the statute and the
regulation state that reasonable doubt shall be resolved in favor of the claimant, and the
regulation adds that “reasonable doubt” exists when there is “an approximate balance of
positive and negative evidence which does not satisfactorily prove or disprove the
claim.” 38 C.F.R. § 3.102. The doctrine is triggered only when the evidence in the case
is evenly balanced. It does not apply when, as here, the Board is persuaded that the
claimant has failed to prove his case. Hauck v. Nicholson, 403 F.3d 1303, 1306-07
(Fed. Cir. 2005); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).
2009-7139 5
As to whether the Board erred in finding Mr. Roth’s evidence unpersuasive, this
court may not review a challenge to a factual determination, or a challenge to a law or
regulation as applied to the facts of a particular case. 38 U.S.C. § 7292(d)(2).
Accordingly, we lack jurisdiction to weigh the evidence as it pertains to the three
documents Mr. Roth presented in support of his case. Thus, we may not consider
whether the notations on the social worker’s report from September 1980 indicated an
intention by the social worker to file a claim on Mr. Roth’s behalf, whether the earlier
10-7131 Form dated February 1979 provided support for an already-filed PTSD claim or
was solely an information-gathering document, and whether the undated identification
card was issued for a PTSD claim rather than a 1971 claim for educational benefits. In
each instance, the Board found that the weight of the evidence failed to support the
contention that a claim for PTSD benefits was filed prior to April 22, 1993. The
Veterans Court affirmed those factual determinations, and those fact-based decisions
are not within our jurisdiction to review.
2009-7139 6