Palmer v. Shinseki , 419 F. App'x 983 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BRUCE PALMER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7020
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-73, Judge Alan G. Lance,
Sr.
_________________________
Decided: March 11, 2011
_________________________
BRUCE PALMER, of Altoona, Iowa, pro se.
DAVID D’ALESSANDRIS, 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 TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and BRIAN M. SIMKIN, Assistant Director. Of counsel on
PALMER v. DVA 2
the brief were MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, and KRISTIANA M. BRUGGER, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before GAJARSA, PROST, and O’MALLEY, Circuit Judges.
PER CURIAM.
Bruce Palmer, pro se, appeals the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming a Board of Veterans’ Appeals
decision finding that there was no clear and unmistakable
error (“CUE”) in a May 1989 decision by the Department
of Veterans’ Affairs (“VA”) regional office (“RO”). That
1989 RO decision denied Palmer’s claim of service connec-
tion for a psychiatric disorder, finding no medical evi-
dence of a then-current nervous disorder and no service
connection to any such condition. For the reasons ex-
plained below, we affirm.
BACKGROUND
Palmer served in the United States Navy from No-
vember 1974 to October 1975. In July 1975, Palmer
requested a transfer based on an alleged attack by a
shipmate on June 27, 1975 (the “1975 Transfer Request”).
In his request, Palmer wrote the following:
I request a transfer to the West Coast or shore
duty. I, Palmer, Bruce, was attack[ed] by a ship-
mate who claims to belong to the Ku Klux Klan. I
was verbally abused, and also physically touch[ed]
by this sailor. He also had a weapon (45 cal. gun)
which I know he would have kill[ed] me or shot
me if he would have found me that day.
3 PALMER v. DVA
See Appellant’s Reply Brief Addendum, at 1; see also
Palmer v. Shineski, No. 09-0073, 2010 WL 2316257, at *1
(Vet. App. June 10, 2010). Palmer’s transfer request was
denied. He subsequently received an honorable dis-
charge, with the record of discharge listing the reason as
“unsuitability – apathy & defective attitudes.” While
awaiting administrative separation, Palmer went on an
unauthorized absence for eleven days, after which he was
admitted to the Neuropsychiatric Service, Naval Regional
Medical Center. His presenting diagnosis was “chronic
psychosis” with notations that he “voiced religious beliefs
which bordered on the delusional” and was “aloof, with-
drawn, and defensive.” After observation, his final diag-
nosis was changed to “passive-aggressive personality.”
Palmer was discharged from the medical center on Octo-
ber 3, 1975, and received his discharge papers from the
Navy on October 8, 1975.
Over thirteen years later, in January 1989, Palmer
applied for service-connected disability benefits for “emo-
tional problems-aggressive personality” and questionable
“psychosis.” The RO considered appellant’s service medi-
cal records, including his October 1975 discharge indicat-
ing a diagnosis of “passive-aggressive personality,” as well
as medical records from 1988 and 1989 showing treat-
ment for abdominal pain, small bowel obstruction, and
duodenal ulcers. In May 1989, the RO denied Palmer’s
claim, finding that, because personality disorders are not
compensable diseases or injuries under 38 C.F.R. §
3.303(c), the evidence of record did not reveal a com-
pensable nervous condition. Palmer did not appeal this
decision, and it became final.
In 1995, and again in 1998, Palmer filed for service-
connected disability benefits for Post-Traumatic Stress
Disorder (“PTSD”). His 1995 claim was denied, again due
to a lack of evidence of a medical diagnosis of a then-
PALMER v. DVA 4
current compensable disorder. Specifically, despite
Palmer’s assertion that he suffered from PTSD with
paranoia, his medical records contained express medical
findings of “insufficient symptoms at this time” to support
such a diagnosis. Palmer did not appeal that finding.
Eventually, Palmer was diagnosed with PTSD, de-
pression, and obsessive-compulsive symptoms. A May
1999 letter from Dr. John E. Mundt, Ph.D, a Licensed
Clinical Psychologist with the Department of Veterans
Affairs, to an adjudication officer at the RO, also included
the opinion that the PTSD was likely connected to
Palmer’s described on-board trauma. Dr. Mundt also
questioned the validity of the 1975 discharge diagnosis of
passive-aggressive personality disorder. Based on this
new medical record, Palmer’s 1998 application was
granted, with Palmer ultimately receiving benefits at a
disability rate of 70% pursuant to a 2002 RO decision. 1
In March 2001, Palmer requested records relating to
his Transfer Request from the U.S. Navy pursuant to a
Freedom of Information Act request. He was told there
was no record of any alleged on-board attack and that any
such records would have been destroyed after twenty-five
years in any event, with no record of the destruction. On
December 20, 2005, however, the VA received a copy of
records relating to Palmer’s 1975 Transfer Request,
1 In the underlying proceedings in this matter,
Palmer also challenged the effective date of the benefits
assigned in the 2002 RO decision and the 1995 RO deci-
sion denying his claim, but he does not raise those issues
on appeal. Because he expressly stated on appeal to the
Veterans Court that he was not appealing those decisions
and did not present any arguments directed to them, the
Veterans Court found them to be abandoned. See Palmer,
2010 WL 2316257, *1 (citing Ford v. Gober, 10 Vet. App.
531, 535 (1997)). We agree.
5 PALMER v. DVA
including the Request itself. It is unclear from the record
how those documents came to be sent to the VA, though
Palmer implies it was the result of a VA request in 1999.
In December 2004, nearly fifteen years after the May
1989 RO decision denying his service connection for a
nervous order, Palmer filed a motion arguing that the
May 1989 decision was the result of CUE because the RO
failed to seek and obtain records about his alleged service
assault in 1975. In April 2005, the RO found there was no
CUE in the 1989 RO decision. Palmer appealed to the
Board of Veterans Appeals, which agreed that there was
no CUE.
On June 10, 2010, the Veterans Court affirmed, find-
ing that the Board’s decision that no CUE existed in the
1989 RO decision was supported by an adequate state-
ment of reasons or bases, and that the decision was not
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” See Palmer, 2010 WL
2316257, at *3. It further found that Palmer’s argument
that the VA breached its “duty to assist” by not obtaining
his 1975 Transfer Request and related records could not
support an assertion of CUE because an assertion of CUE
must be based on the record that existed as of 1989. The
Veterans Court also found that the transfer request was
not in the 1989 record simply because it was in the pos-
session of another government agency – i.e., the Navy. Id.Palmer appeals that decision to this court.
DISCUSSION
Our review of Veterans Court decisions is limited by
statute. Under 38 U.S.C. § 7292(a), we may review “the
validity of a decision of the [Veterans] Court on a rule of
law or of any statute or regulation . . . or any interpreta-
tion thereof (other than a determination as to a factual
matter) that was relied on by the Court in making the
PALMER v. DVA 6
decision.” Unless the appeal presents a constitutional
issue, 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 review legal determinations by the
Veterans Court under a de novo standard. See Arzio v.
Shineski, 602 F.3d 1343, 1345 (Fed. Cir. 2010).
A final decision by an RO may be attacked collaterally
if evidence establishes a CUE. See 38 U.S.C. § 5109A;
Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir. 2003) (en
banc). To constitute CUE, “the alleged error must have
been outcome determinative,” and “the error must have
been based upon the evidence of record at the time of the
original decision.” Cook, 318 F.3d at 1344; Pierce v.
Principi, 240 F.3d 1348, 1353 (Fed. Cir. 2001) (For pur-
poses of a CUE analysis, the relevant “evidence” is the
“evidence that was of record when the challenged decision
was made”). We address the arguments raised on appeal
to the extent they present legal issues within our jurisdic-
tion. 2
On appeal, Palmer’s primary argument is that the
1989 RO decision constituted CUE because the RO either
failed to obtain or to consider the Navy records relating to
Palmer’s 1975 Transfer Request, and that consideration of
the 1975 service assault would have changed the outcome
of the decision. 3 Essentially, Palmer’s contention is that,
2 The Secretary of Veterans Affairs (“Secretary”)
agrees that the Veterans Court decision relied on a rule of
law, the validity of which is reviewable by this court.
Specifically, the Veterans Court held that documents not
in the possession of the RO, but in another government
agency’s possession, are not “in the record” for purposes of
RO adjudication.
3 Although Palmer checked the box on Form 13 of
his Informal Brief indicating that the Veterans Court
7 PALMER v. DVA
if the RO had records before it relating to his on-board
injury and hate-crime trauma, it would have, and pre-
sumably should have, questioned his 1975 medical re-
cords and diagnosis (as did Dr. Mundt in 1999) and
ordered a psychiatric evaluation in 1989. Palmer con-
tends a full evaluation at that time would have resulted
in a much earlier diagnosis of service-connected PTSD.
Palmer seems to assert that the RO’s failure to obtain the
1975 Transfer Request records was in breach of its “duty
to assist” and that those records should have been consid-
ered because they were “in the record” at the time of the
1989 RO decision, on the theory that they were available
upon request to the Navy. For the reasons discussed
below, both contentions fail.
To the extent Palmer argues that the RO breached its
“duty to assist” by not obtaining the records relating to
his 1975 Transfer Request, the Veterans Court correctly
determined that “it is well established that a failure to
fulfill a duty to assist cannot constitute CUE.” Palmer,
2010 WL 2316257, *2 (citing Cook, 318 F.3d at 1344-46);
see also 38 C.F.R. § 20.1403(d)(2) (citing a failure to fulfill
the duty to assist as an example of a situation that is not
clear and unmistakable error). The reason for this rule is
that the asserted error must have occurred at the time of
the original determination. Cook, 318 F.3d at 1344. An
allegation of a breach of the duty to assist, however,
“necessarily implicates evidence that was not before the
RO at the time of the original decision.” Id. at 1346.
Accordingly, such evidence cannot be reviewed on a CUE
decided constitutional issues, the only issue he identifies
in the comment box below is the duty to assist. He also
cites “due process” in his reply brief, but these arguments
only reiterate his claim that the RO erred by not obtain-
ing or considering his 1975 Transfer Request. They do
not state a constitutional claim.
PALMER v. DVA 8
analysis, and Palmer’s argument on this point is unavail-
ing.
We also do not find that the records relating to the
1975 Transfer Request were “in the record” merely be-
cause they may have been in the Navy’s possession. The
Veterans Court found that “‘[i]n the record’ means that
the documents are in the actual possession of the RO at
the time it conducts its review of the claim.” Palmer,
2010 WL 2316257, at *3. Although we agree with the
Veterans Court’s conclusion that these particular records
were not “in the record” of the RO as of the 1989 determi-
nation, we do not endorse the broad statement of law that
“in the record” means only in the “actual possession” of
the RO. That statement does not take into account the
doctrine of constructive notice set forth in Bell v. Derwin-
ski, 2 Vet. App. 611, 613 (1992), in which the Veterans
Claims court deemed the Board of Veterans Appeals to
have constructive notice of four items that were generated
by the VA or submitted to the VA by the appellant as part
of her claim, but which were not originally part of the
veteran’s claim file. Because the Board had constructive
notice of these documents, they were held to be part of the
record. Id.; cf. Disabled Am. Veterans v. Gober, 234 F.3d
682, 695 (Fed. Cir. 2001) (noting that 38 C.F.R.
§ 20.1403(b)(2) “adopts the concept of ‘constructive notice’
for Board decisions”).
The Secretary distinguishes Bell and argues that it
does not apply to this case. We agree. As an initial mat-
ter, Bell, which issued in 1992, does not apply retroac-
tively, and therefore would not apply to the 1989 RO
decision in this case. See Damrel v. Brown, 6 Vet.App.
242, 246 (1994); see also Disabled Am. Veterans, 234 F.3d
at 697 (upholding 38 C.F.R. § 20.1403(b)(2) and stating
that “we will not disturb the VA’s decision to pick the date
of Bell to limit the [constructive notice] doctrine’s applica-
9 PALMER v. DVA
tion in CUE cases”). Even if Bell had retroactive effect,
moreover, we would decline to extend it to these circum-
stances, where the records at issue were neither gener-
ated by the VA nor submitted to it by the veteran as part
of his claim. See Hyatt v. Shinseki, 566 F.3d 1364, 1371
(Fed. Cir. 2009) (declining to extend Bell to hold that the
VA had constructive notice of court martial records aris-
ing from an incident during the veteran’s service in the
United States Marine Corps, when the records were not
“generated by, submitted to, or otherwise within the VA’s
possession or control”). Because there is no evidence that
the RO had either possession or actual or constructive
knowledge of the 1975 Transfer Request records, we agree
with the Veterans Court’s conclusion that these docu-
ments were not “in the record” in 1989 for purposes of the
CUE analysis.
Finally, even to the extent we could consider whether
the RO erred by not considering Palmer’s 1975 Transfer
Request and the alleged service assault discussed in that
request and related records, the omission of such evidence
does not rise to the level of being “outcome determinative”
for purposes of a CUE analysis. This evidence would not
change the fact that, at the time of the 1989 RO decision,
Palmer had not been diagnosed with a compensable
nervous disorder or other compensable condition entitling
him to benefits. Under the record that existed in 1989,
therefore, there was simply no basis to award benefits,
regardless of whether evidence of a service assault was
also before the RO. 4
4 While it is true that Palmer has now been diag-
nosed with PTSD, and that Dr. Mundt suspects that his
PTSD may be connected to his the 1975 service assault,
there was no record of such a diagnosis before the RO in
1989 and no evidence “in the record” to even raise the
suspicion that such a diagnosis should have been made.
PALMER v. DVA 10
For the reasons stated above, the decision of the Vet-
erans Court is affirmed.
COSTS
Each party shall bear its own costs.
AFFIRMED
Indeed, as late as 1995, doctors did not believe Palmer’s
symptomatology supported a compensable diagnosis.