Thompson v. Derwinski , 1 Vet. App. 251 ( 1991 )

FARLEY, Associate Judge, filed the opinion of the Court, in which HOLDAWAY, Associate Judge, joined.

STEINBERG, Associate Judge, concurring in part and dissenting in part, filed a separate opinion.

FARLEY, Associate Judge:

Appellant, Charles E. Thompson, is appealing from a March 2, 1990, Board of Veterans’ Appeals (Board or BVA) decision upholding the denial of service connection for bilateral hearing and otitis media. The Court finds that the BVA erred in treating the evidence submitted by appellant as new and material when the Board itself concluded that the evidence was cumulative. However, since appellant failed to satisfy the two-step test established by Manio v. Derwinski, 1 Vet.App. 140, 144-147 (1991), any such error is deemed not to have been prejudicial to the ultimate resolution of the claim. See 38 U.S.C. § 4061(b). Accordingly, the decision of the Board is affirmed.

In August 1973, a Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office rating board denied appellant’s claim for service connection for bilateral defective hearing and otitis media. That decision was not appealed. In a decision dated February 10, 1986, the BVA upheld the denial of appellant’s renewed claim, ruling that the August 1973 rating was final and not “clearly and unmistakably erroneous.” Charles E. Thompson, loc. no. 603935 (BVA Feb. 10, 1986). The Board also ruled that the evidence received since the 1973 rating did not establish a new factual basis which warranted the granting of service connection for bilateral defective hearing and otitis media. Finally, in a decision issued on March 2, 1990, after ruling that appellant had submitted new and material evidence, the BVA once again upheld the denial of appellant’s claim, concluding: “The Board’s decision of February 1986 is final; a new factual basis has not been provided warranting service connection for bilateral defective hearing and oti-tis media.” Charles E. Thompson, loc. no. 007705, at 7-8 (BVA Mar. 2, 1990).

Pursuant to 38 U.S.C. § 3008 (1988), if evidence is found to be both “new and material,” then the finality of a once “final” BVA decision is removed and the claim must be reopened and the former disposition reviewed. In applying this provision, however, the Board appears to have walked a wavering line. On the one hand, it specifically commented: “Evidence submitted with the veteran’s reopened claim includes contentions and testimony which is essentially cumulative to that previously offered by the veteran.” Charles E. Thompson, loc. no. 007705, at 7 (BYA Mar. 2, 1990). On the other hand, and the reference to “cumulative” notwithstanding, the Board concluded that the evidence received since the February 1986 decision was “new and material.” Id.

As this Court noted in Manio v. Derwinski, 1 Vet.App. at 144-147 (1991), a claimant seeking to prevail on a claim reopened on the basis of new evidence must satisfy both parts of a two-step test. “First, the BVA must determine whether the evidence is ‘new and material’. 38 U.S.C. § 3008. Second, if the BVA determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.” Manio, 1 Vet.App. at 145 (citation omitted). It matters not whether the evidence actually fails to meet the “new and material” part of the test or the claim is denied after reopening and review of the former disposition. If one part of the two-part test is not satisfied, a claimant does not prevail.

Our dissenting colleague suggests that there is an additional issue lurking in the BVA’s 1990 decision which is the subject of this appeal. Motivated by “serious doubts” as to the correctness of the 1973 rating decision and the 1986 BVA decision, the dissent would vacate the 1990 BVA decision because it did not consider whether the 1986 decision was the product of “clear and unmistakable error.” While we are in sympathy with our dissenting colleague’s doubts, we are unable to agree that we could or should, in effect, review the 1986 BVA decision. Moreover, the statutory and regulatory provisions upon which our colleague relies simply do not apply to this case.

A claimant may have a claim reopened and reconsidered on the merits only upon the submission of new and material evidence. See 38 U.S.C. § 3008. Otherwise, a BVA decision is final. 38 U.S.C. § 4004(b) (1988). The one exception to this rule of finality is when there has been an administrative error committed by the VA during the adjudication of the claim. If so, “the [Secretary] is authorized to provide such relief on account of such error as the [Secretary] determines equitable, including the payment of moneys to any person whom the [Secretary] determines equitably entitled thereto.” 38 U.S.C. § 210(c)(2) (1988). Under both the old and the new versions of 38 U.S.C. § 4003 (1988), the BVA “on its own motion may correct an obvious error in the record.” Pursuant to this statutory authority the VA has promulgated 38 C.F.R. §§ 3.104 and 3.105 (1990) which permit the Board to correct “clear and unmistakable error.” It is these regulations which the dissent seeks to use as a springboard to reach the original 1973 rating decision. However, 38 C.F.R. § 3.105(b) clearly distinguishes a “clear and unmistakable error” from a “difference of opinion,” a distinction which the dissent chooses to ignore.

Simply stated, there is no administrative error alleged to have occurred during the adjudication of appellant’s claim. Unlike the situations presented in Bentley v. Derwinski, 1 Vet.App. 28 (1990), appeal dismissed for failure to prosecute, No. 91-7020 (Fed.Cir. Feb. 22, 1991), and in Akins v. Derwinski, 1 Vet.App. 228 (1991), this case does not present an allegation that the rating board or the BVA failed to apply the correct statutory and regulatory provisions; nor is there any question that the rating board and the BVA had before them the relevant and correct facts. The sole basis for the dissent is a disagreement with the original rating and its interpretation of the facts. If the claim had been reopened upon the submission of new and material evidence, we might indeed join our dissenting colleague in reversing as “clearly erroneous” a BVA decision which upheld the original rating decision. See 38 U.S.C. § 4061(a)(4) (1988). However, in the absence of new and material evidence, the claim cannot be reopened; nor can we use any difference of opinion we might have as an excuse to find that the VA committed an administrative error during the adjudication process. In the absence of administrative error, 38 U.S.C. § 4003 and 38 C.F.R. § 3.105 do not apply; we cannot join in an effort to distort them to make them apply even though the result is a harsh one.

Here the BVA ruled that the subsequent evidence submitted by the claimant did not provide a new factual basis for granting service connection; the BVA did not specifically decide that the evidence submitted by the claimant was new and material to his claim. While we see no basis in the record for overturning the BVA’s conclusion, we do believe that it was error to treat evidence which is essentially cumulative as new and material. See Colvin v. Derwin-ski, 1 VeiApp. 171, 174 (1991) (“[n]ew evidence is not that which is merely cumulative of other evidence on the record.” (citation omitted)). However, since the claimant could not satisfy both parts of the two-step test, any such error would not have been prejudicial to the ultimate resolution of the claim. See 38 U.S.C. § 4061(b) (1988). Therefore, because appellant did not submit new and material evidence, the decision of the Board is AFFIRMED.

It is so Ordered.