Price v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7034
DANIEL PRICE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Andrew J. Waghorn, of Gainesville, Virginia, for claimant-appellant.
Scott D. Austin, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E.
Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the
brief were Michael J. Timinski, Deputy Assistant General Counsel, and Michael G.
Daugherty, Attorney, Office of the General Counsel, United States Department of
Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7034
DANIEL PRICE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims
in 06-1853, Chief Judge William P. Greene, Jr.
___________________________
DECIDED: October 8, 2009
___________________________
Before NEWMAN, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
DECISION
Daniel Price appeals from a decision of the Court of Appeals for Veterans Claims
(“the Veterans Court”), in which that court upheld a decision by the Board of Veterans’
Appeals holding that an earlier decision by the Board did not contain clear and
unmistakable error. We affirm.
BACKGROUND
Mr. Price served in the U.S. Army from 1961 to 1968. In 1982, he filed a claim
with the Veterans Administration seeking service connection for “readjustment
problems,” a condition later classified as post-traumatic stress disorder (“PTSD”). The
regional office denied his claim in October 1982 but failed to notify him of the denial, so
the claim remained open. In 1989, he requested that his claim be reopened. The
regional office denied the request in November 1989, finding that “the weight of the
evidence fails to establish the criteria for a diagnosis of PTSD was met.” The regional
office added that the evidence “does not present a new factual basis to establish service
connection for PTSD, previously denied.” Mr. Price did not appeal that denial, and it
became final.
In 1992, Mr. Price again sought to reopen his claim. After further development,
the regional office granted the claim and assigned him a 30% disability rating with an
effective date of April 1992. Mr. Price, however, contended that because he had never
been notified of the denial of his 1982 claim, the effective date of his disability rating
should have been 1982. In a 2003 decision, the Board of Veterans’ Appeals denied Mr.
Price’s claim for a 1982 effective date and held, instead, that the effective date for his
disability rating was the date of his renewed claim in 1992.
In 2005, Mr. Price filed a motion alleging that the Board’s 2003 decision
contained clear and unmistakable error. The error, according to Mr. Price, was treating
the November 1989 regional office decision as rendering final the regional office’s
October 1982 decision that denied his original claim. The Board denied relief in a
decision issued in 2006. In its 2006 opinion, the Board acknowledged that the regional
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office in November 1989 had advised Mr. Price that he needed to submit new and
material evidence in support of his claim in light of the fact that the claim had previously
been denied. However, the Board found that “it is clear from a reading of the November
1989 rating decision that the issue of entitlement to service connection for PTSD was
decided on the merits.” In light of the fact that the November 1989 rating decision
addressed and decided the issue of entitlement to service connection for PTSD on the
merits, the Board concluded that “the October 1982 rating decision was subsumed by
the November 1989 decision, as it adjudicated the same exact issue.” Because Mr.
Price was notified of the November 1989 rating decision but did not appeal that decision
before it became final, the Board concluded that “neither the October 1982 nor the
November 1989 rating decisions remains ‘open and pending’ as argued by the veteran.”
Mr. Price appealed to the Veterans Court, which affirmed. The court held that
the Board was correct to hold, both in 2003 and 2006, that the 1989 regional office
decision had the effect of subsuming his 1982 claim and that both the 1982 decision
and the 1989 decision became final when Mr. Price did not appeal the 1989 regional
office decision. The court also rejected Mr. Price’s argument that the Board in 2006
erred by concluding that the regional office in 1989 had decided and denied Mr. Price’s
service connection claim on the merits. The court explained that although the Board in
2003 had assumed that the regional office in 1989 had denied Mr. Price’s claim based
on the failure to present new and material evidence, it was not improper for the Board in
2006 to reexamine the question of what the regional office actually did in 1989. The
court explained that the Board in 2006 simply “delved further into the actual
determinations made in [the November 1989] adjudication,” and that it was within the
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Board’s authority to do. The court added that even if the November 1989 regional office
decision were treated as having denied a claim to reopen rather than having denied Mr.
Price’s claim for service connection on the merits, the regional office’s action would
have constituted sufficient notice that his overall claim for service connection for PTSD
was denied. Accordingly, the Board concluded, Mr. Price’s failure to appeal from the
November 1989 regional office decision rendered both his 1982 and 1989 claims final.
Mr. Price now appeals to this court.
DISCUSSION
We uphold the decision of the Veterans Court. The government contends that
this appeal is not within our jurisdiction because it raises only a challenge to a law or
regulation as applied to the facts of a particular case. 38 U.S.C. § 7292(d)(2). While it
is true that Mr. Price’s challenge to the decisions below is largely factual in nature, his
appeal raises one legal issue that falls within this court’s jurisdiction: whether, under the
state of the law at the time of the Board’s decision in 2003, an earlier claim that was still
open because the veteran had not been notified of its denial was rendered final by a
later decision denying a claim for service connection for the same disability.
As to that issue, Mr. Price argues that the Board’s 2003 decision was clearly
wrong in light of legal principles in effect at that time. According to Mr. Price, the
decision of the Veterans Court upholding the Board’s 2006 decision was based on a
post-2003 change in the law that the court should not have considered in determining
whether the Board committed clear and unmistakable error in its 2003 decision. The
change in the law, Mr. Price argues, came in the form of decisions of the Veterans
Court in 2007 and 2008 that held, for the first time, that a decision denying reopening of
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a claim for lack of new and material evidence had the effect of rendering final an earlier
regional office decision on the same claim that was still open. According to Mr. Price,
precedents of the Veterans Court that were in effect as of 2003 made clear that a
decision denying a claim based on the absence of new and material evidence would not
have the effect of denying an earlier claim relating to the same disability that was still
open. For that reason, he argues, the Board in 2003 committed clear and unmistakable
error by failing to rule that the effective date for the ultimate award of benefits for his
PTSD claim was the filing date of his original 1982 claim.
The first flaw in that argument, as explained by the Veterans Court, is that the
Board in 2006 examined the 1989 regional office decision and concluded that the
regional office had denied Mr. Price’s claim on the merits, not simply for failure to submit
new and material evidence. There is no room for dispute that, if the 1989 regional office
decision was on the merits, the 1982 regional office decision was subsumed in the 1989
decision, and the 1982 decision became final when Mr. Price failed to appeal the 1989
decision. See Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008) (“a subsequent
final adjudication of a claim which is identical to a pending claim that had not been
finally adjudicated terminates the pending status of the earlier claim”). Although Mr.
Price questions whether the Board in 2006 should have addressed the question
whether the 1989 decision was on the merits, the Board’s 2006 decision makes clear
that the Board committed no legal error when it examined the November 1989 regional
office decision to ascertain what the regional office decided at that time. As the
Veterans Court put it, the Board in 2006 “merely delved further into the actual
determinations made in that adjudication.” As the court further explained, in making a
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determination as to whether an earlier decision was infected by clear and unmistakable
error, the Board was entitled to make findings, including findings as to the nature of the
November 1989 regional office decision. Those findings are not open for us to
reconsider. See 38 U.S.C. § 7292(d)(2).
The Veterans Court held that even if the 1989 regional office decision were
based on the failure to submit new and material evidence, Mr. Price would still not be
entitled to a 1982 effective date for his claim, because even in that setting the denial of
his 1989 claim would have the effect of notifying him that his 1982 claim for service
connection for PTSD had been denied. In support of that ruling, the Veterans Court
cited two of its decisions, Juarez v. Peake, 21 Vet. App. 537 (2008), and Ingram v.
Nicholson, 21 Vet. App. 232 (2007). Mr. Price does not ask us to reject those decisions
or suggest that they do not apply to a situation such as the one in this case. Instead,
his claim is that because those decisions post-dated the Board’s decision in 2003, it
was legal error for the Veterans Court to apply the law set forth in those decisions in
determining whether the Board’s 2003 decision was infected by clear and unmistakable
error. 1
1
Typically, when a veteran raises a collateral challenge to an earlier decision
based on a claim of clear and unmistakable error, the question whether there has been
a change in the law since the time of the earlier decision is directed to whether, even if
the law is now more favorable to the veteran, the earlier decision was nonetheless
correct in light of the state of the law at the time. See 38 C.F.R. § 20.1403(a) (for clear
and unmistakable error to be found, “the statutory and regulatory provisions extant at
the time [must have been] incorrectly applied”); id. § 20.1403(e) (“Clear and
unmistakable error does not include the otherwise correct application of a statute or
regulation where, subsequent to the Board decision challenged, there has been a
change in the interpretation of the statute or regulation.”). This case, in which the
argument is that the state of the law was more favorable to the veteran at the time of the
earlier decision, is therefore different from the usual case raising a claim of clear and
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Contrary to Mr. Price’s argument, the Veterans Court explained that the Juarez
and Ingram decisions did not effect a change in the law but instead were consistent with
previously applicable legal principles. The court had simply had no occasion to apply
the governing principles in the particular settings that arose in Juarez and Ingram until
those cases were decided. To say that a decision applies a particular rule in a new
setting for the first time is, of course, far different from saying that the new decision
represents a change in the law.
Citing Myers v. Principi, 16 Vet. App. 228 (2002), which predated the Board’s
2003 decision, Mr. Price argues that when the Veterans Court in Juarez and Ingram
declined to apply Myers to a case involving a regional office’s failure to notify the
veteran of an adverse decision, the court created a new rule of law. For that reason, he
argues that Juarez and Ingram reflect a change in the law and that the 2003 Board
decision contained clear and unmistakable error under then-applicable legal principles.
As the Veterans Court explained, however, the Myers decision is distinguishable from
the later decisions in Juarez and Ingram and does not apply under the circumstances of
either those cases or this case. In Myers, unlike in this case, the veteran had filed a
notice of disagreement with the regional office decision. That step had the effect of
initiating an appeal in the Board of Veterans’ Appeals. The regional office took none of
unmistakable error. We do not address whether clear and unmistakable error can be
found when the state of the law at the time of the original decision was more favorable
to the veteran than it was when the veteran filed his collateral challenge to the earlier
decision. We also do not address the related question whether the state of the law for
purposes of a claim of clear and unmistakable error can be based on a judicial or
administrative interpretation of a statute or regulation, which interpretation is later
altered by the court in a manner that is less favorable to the veteran.
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the further required steps to process the appeal in the proper fashion, so the case
remained open in an appellate posture for years. Under those circumstances, the
Veterans Court held that a later decision of the regional office denying the veteran’s
claim could not have the effect of terminating his earlier claim, since the regional office’s
action could not affect a case that was already pending before the Board on appeal. In
this case, by contrast, the veteran never filed a notice of disagreement, so the claim
remained open before the regional office. Accordingly, the regional office’s later
rejection of a claim based on the same disability could serve to bring finality to the
earlier pending claim. Indeed, the Veterans Court in Juarez distinguished Myers on
exactly that ground, providing further support for the conclusion that Juarez and Ingram
did not represent a change in the law. 2
For these reasons, we uphold the decision of the Veterans Court rejecting Mr.
Price’s argument that the 2003 Board decision was infected by clear and unmistakable
2
In his reply brief, Mr. Price argues that the Veterans Court’s decision in
Woods v. Gober, 14 Vet. App. 214 (2000), cited by the court in Myers, indicates that at
the time of Myers a veteran in Mr. Price’s position would be accorded an effective date
as of the date of his original claim. The Woods case, however, presents an entirely
different fact situation and provides no support for Mr. Price’s argument. In that case,
an original claim remained open, and the veteran’s claim to reopen his case was
granted. In that context, the effective date was properly traced to the date the veteran’s
original claim was filed. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) (“If
a claim is left pending, it can be addressed when a subsequent claim for the same
disability is adjudicated by the DVA, in which case the effective date for any award of
benefits will be the effective date applicable to the original claim.”). Because the claim
to reopen was granted in the Woods case, there was no issue as to whether the denial
of the claim to reopen would have constituted a denial of the original claim as well.
Accordingly, neither the Woods case standing on its own, nor the fact that the Myers
court cited Woods, provides any support for Mr. Price’s characterization of the scope of
the Veterans Court’s decision in Myers.
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error. Mr. Price is therefore not entitled to an effective date in 1982 for the disability
rating assigned for his PTSD.
No costs.
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