Deshotel v. Nicholson ( 2006 )


Menu:
  • United States Court of Appeals for the Federal Circuit
    05-7155
    JAMES L. DESHOTEL,
    Claimant-Appellant,
    v.
    R. JAMES NICHOLSON, Secretary of Veterans Affairs,
    Respondent-Appellee.
    Francis M. Jackson, Jackson & MacNichol, of Portland, Maine, argued for
    claimant-appellant.
    John S. Groat, Attorney, Commercial Litigation Branch, Civil Division, United
    States Department of Justice, of Washington, DC, argued for respondent-appellee.
    With him on the brief were Peter D. Keisler, Assistant Attorney General; David M.
    Cohen, Director; and Bryant G. Snee, Assistant Director. Of counsel on the brief were
    Michael J. Timinski and Amanda R. Blackmon, Attorneys, United States Department of
    Veterans Affairs, of Washington, DC.
    Appealed from: United States Court of Appeals for Veterans Claims
    Judge Lawrence B. Hagel
    United States Court of Appeals for the Federal Circuit
    05-7155
    JAMES L. DESHOTEL,
    Claimant-Appellant,
    v.
    R. JAMES NICHOLSON, Secretary of Veterans Affairs,
    Respondent-Appellee.
    ___________________________
    DECIDED: July 27, 2006
    ___________________________
    Before, GAJARSA, DYK, and PROST, Circuit Judges.
    DYK, Circuit Judge.
    James L. Deshotel seeks review of the decision of the United States Court of
    Appeals for Veterans Claims (“Veteran’s Court”) dismissing his appeal for lack of
    jurisdiction. We affirm.
    BACKGROUND
    Deshotel served on active duty in the United States Army from October 1965 to
    May 1969. During his service, he was involved in a car accident resulting in a cerebral
    concussion and a dislocated shoulder and fractured clavicle. In May 1969, Deshotel
    filed a claim for disability compensation benefits for his injuries. The Department of
    Veterans Affairs (“VA”) regional office (“RO”) granted service connection for Deshotel’s
    shoulder injury, finding the injury to be 20% disabling but did not grant service
    connection for his residual head injury claims. There is no contention here that this May
    1969 claim included a claim for psychiatric disability.
    In July 1984, Deshotel filed an application to reopen his denied claim for service
    connection for residuals of his head injury and, it appears, for an increased disability
    rating for his back and shoulder injuries. Deshotel contends that under our decisions in
    Moody v. Principi, 
    360 F.3d 1306
     (Fed. Cir. 2004), Szemraj v. Principi, 
    357 F.3d 1370
    (Fed. Cir. 2004), and Roberson v. Principi, 
    251 F.3d 1378
     (Fed. Cir. 2001), the VA was
    required to construe this pro se claim sympathetically to include a claim for psychiatric
    disability as well as a claim for physical disability resulting from the head injury. In
    January 1985, after conducting a medical examination (including a psychiatric
    examination), the RO granted service connection for “status post head trauma with post
    traumatic headaches,” finding the injury to be 10% disabling. The RO’s decision did not
    specifically address any secondary claim for psychiatric disability, although it did note in
    its narrative that the “VA exam shows no psychiatric symptomatology noted at present
    time.” Deshotel did not appeal from this rating determination.
    In August 1999, Deshotel again sought to reopen his compensation claim, this
    time to include claims for “memory loss and depression due to head/brain disease.” In
    addressing this claim in September 1999, the RO explicitly treated Deshotel’s claim as
    including a psychiatric claim based on new and material evidence. The RO increased
    Deshotel’s disability from 10% to 30% for the head trauma and headaches, but deferred
    a rating as to memory loss and depression (the “psychiatric” disability claims) secondary
    to the service-connected head injuries until further medical records were available. In
    March 2000, the RO denied service connection for Deshotel’s psychiatric disability
    05-7155                                   2
    claims. Deshotel then began the appeal process by filing a notice of disagreement
    (“NOD”). In response, on October 20, 2000, the RO issued a new decision in which it
    found a 70% service-connected psychiatric disability for “mood disorder, personality
    change and cognitive disorder secondary to traumatic brain injury with post-traumatic
    headaches,” effective from August 4, 1999, the date on which Deshotel sought to
    reopen his claim. J.A. at 5.
    Deshotel then filed a second NOD, arguing that the effective date of the 70%
    psychiatric disability determination should have been July 20, 1984—the date that
    Deshotel requested that his claim be reopened.           The RO notified Deshotel that it
    construed his second NOD as raising an allegation of clear and unmistakable error
    (“CUE”) in the RO’s January 1985 decision—specifically, an allegation that the 1985
    decision was erroneous because the psychiatric examination “failed to identify any
    psychiatric disability” even though the evidence indicated that Deshotel in fact had a
    psychiatric disability at the time. J.A. at 248. The RO found no CUE in the January
    1985 decision.
    Deshotel appealed to the Board of Veterans’ Appeals (“Board”).             The Board
    concluded that the RO’s January 1985 decision had “implicitly” denied any claim for
    service connection based on psychiatric disability and that there was no CUE in that
    decision.   Deshotel then appealed to the Veteran’s Court.             Deshotel made two
    arguments to the Veteran’s Court. First, Deshotel directly challenged the October 2000
    decision, arguing that the RO “erred by selecting an effective date in 1999 and not in
    1984 . . . and that [Deshotel’s] 1984 claim and the [1985 RO] decision ‘[gave] rise to an
    informal claim of psychiatric disability’ that was not adjudicated until October 2000 . . . .”
    05-7155                                   3
    Deshotel v. Nicholson, No. 03-517, 
    2005 WL 496685
    , 
    19 Vet. App. 465
    , at *3 (Feb. 3,
    2005).     Second, Deshotel argued CUE in the 1985 decision because the RO
    “overlook[ed] the significant findings of the psychiatric report . . . .” 
    Id.
       The Veteran’s
    Court determined that it lacked jurisdiction over both of these arguments. With respect
    to Deshotel’s first argument, the Veteran’s Court decision is less than clear, curiously
    and incorrectly stating that “there has been no Board decision on the issue of
    entitlement to an effective date prior to August 4, 1999 . . . .” Id. at *5. Nonetheless, we
    understand the Veteran’s Court to have held that it lacked jurisdiction to consider an
    appeal from the RO’s 1985 decision because that decision had become final and “only a
    claim of [CUE] could have resulted in an effective date prior to the January 1985
    regional office decision for the October 2000 award . . . .” Id. at *4. With respect to
    Deshotel’s second argument regarding CUE in the 1985 decision, the Veteran’s Court
    held that this specific CUE argument (that the RO overlooked findings that had been
    made in the psychiatric report) had not been raised to the Board and that Deshotel had
    instead argued a different CUE to the Board (that the VA medical examiner erred by
    failing to diagnose or making a finding of psychiatric disability despite the alleged
    evidence of the disability). Thus, the Veteran’s Court dismissed Deshotel’s appeal for
    lack of jurisdiction.   Deshotel timely appealed to this court, reasoning under the first
    argument. We have jurisdiction under 
    38 U.S.C. § 7292
     because Deshotel alleges legal
    error in the Veteran’s Court decision. Szemraj, 
    357 F.3d at 1374-75
    .
    DISCUSSION
    The effective date of an award based on a veteran’s request to reopen a final
    decision on the basis of new and material evidence is generally the date that the
    05-7155                                    4
    application to reopen was filed. 
    38 U.S.C. § 5110
    (a) (2000); Sears v. Principi, 
    349 F.3d 1326
    , 1330-31 (Fed. Cir. 2003). In contrast, the reopening of a final decision based on
    CUE “has the same effect as if the [reopening] decision had been made on the date of
    the prior decision.” 38 U.S.C. §§ 5109A(b), 7111(b) (2000). Generally, an RO’s initial
    determination will become final unless the veteran appeals that determination to the
    Board.       Cook v. Principi, 
    318 F.3d 1334
    , 1340 (Fed. Cir. 2002) (en banc).
    In this case, if the RO’s 1985 decision was a final decision, then Deshotel could
    not claim 1984 as the effective date for his psychiatric disability unless he could
    establish CUE in the 1985 decision. However, on appeal to this court, Deshotel has
    elected not to pursue a CUE claim. Instead, Deshotel contends that the 1985 decision
    was not final as to his psychiatric claim because that claim was never explicitly
    addressed in the 1985 RO decision. Therefore, he argues, the 1985 psychiatric claim
    remained pending and unadjudicated until the RO’s October 2000 decision, which
    granted the psychiatric claim but rejected the 1984 effective date.1 Appellant’s Br. at 8-
    9. We conclude that the 1985 decision constituted a final decision on the psychiatric
    claim.
    Where the veteran files more than one claim with the RO at the same time, and
    the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to
    specifically address the other claim, the second claim is deemed denied, and the appeal
    1
    None of the cases relied upon by Deshotel, i.e., Moody, Szemraj, or Roberson,
    involved an allegation that an implied claim remained pending before the VA as a result
    of the RO’s failure to read a claim sympathetically.
    05-7155                                   5
    period begins to run.2 We considered this exact issue in Andrews v. Nicholson, 
    421 F.3d 1278
     (Fed. Cir. 2005), although the argument regarding a pending unadjudicated
    claim was made there by the government rather than the veteran.
    In Andrews, the veteran, proceeding pro se, filed an application for disability
    benefits and, in 1985, was awarded a partial disability rating of 30% for post-traumatic
    stress syndrome by the RO. 
    Id. at 1279
    . Later, the veteran obtained counsel and
    challenged the RO’s rating determination on CUE grounds, contending that he should
    have been awarded a higher rating. 
    Id.
     The veteran’s CUE claim was denied by the
    Board. 
    Id.
     The Veteran’s Court found no CUE in the RO’s rating determination. 
    Id. at 1280
    . The Veteran’s Court also held that the veteran had waived any argument that the
    RO committed CUE because the RO did not construe the veteran’s previous pro se
    application as including an implied claim for total disability based on individual
    unemployability (“TDIU”) under Roberson. 
    Id. at 1280-81
    .
    The veteran asserted that the Veteran’s Court had erred in finding that the CUE
    claim concerning TDIU had been waived. In response, the government contended that
    even if the claim had been preserved and if the RO had erred in failing to read the
    veteran’s disability claim sympathetically to include a TDIU claim, a CUE claim would
    not be the proper path for correcting that error because the RO had not specifically
    addressed the TDIU claim and it was still pending before the RO awaiting adjudication.
    
    Id. at 1281
    . We explicitly rejected the government’s contention that the implied TDIU
    2
    In order to appeal, the veteran must file a NOD within one year from the date of
    the RO’s initial determination. 
    38 U.S.C. § 7105
    (b)(1). Here no NOD was filed with
    respect to the 1985 decision.
    05-7155                                 6
    claim was pending and unadjudicated. 
    Id.
     Relying on Roberson, 
    251 F.3d at 1383-84
    ,
    we held that where an RO renders a decision on a veteran’s claim for benefits but fails
    to address one of the claims, that decision is final as to all claims; the RO’s failure to
    address the implied claim “is properly challenged through a CUE motion,” not a direct
    appeal.3 Andrews, 
    421 F.3d at 1281
    ; see also Cook, 318 F.3d at 1339 (holding that
    “[t]he statutory scheme provides only two exceptions to the rule of finality” of VA
    decisions, a CUE claim and a claim to reopen based on new and material evidence).
    Thus under the rule articulated in Andrews, if Deshotel believed that the RO
    improperly failed to address his claim for psychiatric disability benefits when it granted
    service connection for his head injuries in 1985, his remedy was either to file a timely
    direct appeal or to file a CUE claim seeking to reopen the 1985 RO decision. Here, no
    direct appeal was filed, and a CUE claim was abandoned.             The Veteran’s Court
    therefore properly dismissed Deshotel’s appeal for lack of jurisdiction.
    CONCLUSION
    For the foregoing reasons, the decision below is affirmed.
    AFFIRMED
    COSTS
    No costs.
    3
    In Andrews, after treating the 1985 decision as final, we went on to hold that
    although the VA was required to construe all of the pro se veteran’s pleadings (including
    CUE claims) sympathetically under Roberson, that requirement did not apply to
    pleadings filed by counsel. Andrews, 
    421 F.3d at 1283
    . Thus even if the RO in 1985
    had failed to sympathetically construe the veteran’s pro se application, counsel’s failure
    to raise this error in the subsequent CUE motion was fatal. 
    Id.
    05-7155                                  7