Morse v. McDonough

Case: 20-1838 Document: 36 Page: 1 Filed: 04/19/2021
United States Court of Appeals
for the Federal Circuit
______________________
EDWARD C. MORSE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-1838
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-4145, Judge Joseph L. Toth.
______________________
Decided: April 19, 2021
______________________
WINONA W. ZIMBERLIN, Manchester, CT, argued for
claimant-appellant.
IGOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN, JR.,
LOREN MISHA PREHEIM; BRIAN D. GRIFFIN, BRANDON A.
JONAS, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
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2 MORSE v. MCDONOUGH
Before DYK, BRYSON, and O’MALLEY, Circuit Judges.
BRYSON, Circuit Judge.
Appellant Edward C. Morse, a veteran, seeks to have
the benefits he is receiving for a service-connected
disability made retroactive to the date he first filed a claim
for those benefits. The Board of Veterans’ Appeals denied
his request, and the Court of Appeals for Veterans Claims
(“the Veterans Court”) upheld the Board’s decision. We
affirm.
I
Mr. Morse served in the U.S. Navy between March
1970 and October 1972. During the six-month period
between September 1971 and March 1972, he was
stationed at the U.S. Naval Support Facility in Da Nang,
Vietnam.
In 1999, Mr. Morse filed a claim for “compensation or
pension” in which he listed several disabilities he had
suffered from since February 1996, including post-
traumatic stress disorder (“PTSD”). J.A. 18–19. In 2000,
he filed a claim for service connection for PTSD. 1 A
regional office of the Department of Veterans Affairs
(“DVA” or “VA”) granted his claim for a nonservice
connected pension in 2001, finding that he was
permanently and totally disabled due to a herniated disc in
his spine and degenerative joint disease. He was
subsequently awarded Social Security disability benefits.
In a 2002 rating decision, the regional office denied Mr.
Morse’s claim of service connection for PTSD. The rating
decision noted that hospital records between 1999 and
1 The parties disagree about whether Mr. Morse’s
1999 claim or his 2000 claim should be treated as his initial
claim for service-connected PTSD benefits. It is not neces-
sary to resolve that dispute for the purposes of this appeal.
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MORSE v. MCDONOUGH 3
2001 showed occasional diagnoses of PTSD but no ongoing
treatment for that condition. The rating decision noted
that Mr. Morse claimed that he had witnessed the
execution of three prostitutes, served as a perimeter guard,
gone on patrols, and shot someone in the leg, all during his
service in Vietnam. He also claimed that he was involved
with two riots during which he had to fire into the ground
to disperse the crowd, that a guard he was supposed to
relieve had been killed, and that he had to pick up body
parts after an ammunition truck blew up in front of his
base. The rating decision stated that “[a]lthough we have
evidence of a diagnosis of post-traumatic stress disorder[,]
there has been no credible evidence of verification of the
claimed stressors.” J.A. 21. The regional office therefore
found “no basis on which to establish service connection for
post-traumatic stress disorder.” Id. Mr. Morse did not
appeal from that rating decision, which became final.
In 2004, Mr. Morse sought to reopen his PTSD claim.
Medical records relating to a period of hospitalization
during that year included a diagnosis of PTSD, among
other health issues. In November 2004, however, the
regional office denied Mr. Morse’s request for reopening,
finding that the evidence he had submitted was not new
and material. Mr. Morse filed a notice of disagreement
with the regional office’s decision, and in response the
regional office reversed course and reopened his claim. The
regional office indicated at that time that it had made a
request for additional service department records to be
used in further adjudication of the claim.
The regional office received the requested service
department records on July 11, 2005. Those records
showed that in June 1972 Mr. Morse saw a psychiatrist
who reported that Mr. Morse was “very tense and nervous,”
appeared “moderately depressed,” and was anxious about
personal problems, including finances and his wife’s
behavior while he was gone. J.A. 27. Another medical
report from May 1971 assessed his condition as “anxiety-
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4 MORSE v. MCDONOUGH
situational.” J.A. 28. The service department records also
included a report of a Vietnamese sailor being killed in Da
Nang when a cement truck went out of control and struck
him. In his testimony before a DVA hearing officer on July
27, 2005, Mr. Morse identified the truck incident as a
stressor for his PTSD.
In October 2006, Mr. Morse underwent a compensation
and pension (“C&P”) examination, which included a
medical examination and review of the materials in his
claims file. In the C&P examination report, the examiner
concluded that Mr. Morse’s case was “challenging with
respect to definitive diagnosis.” J.A. 94. Although the
examiner noted that the medical record “is replete with
diagnoses of PTSD” based on the symptoms Mr. Morse
reported, he found that Mr. Morse was “unable, at least
spontaneously, to provide symptoms that convincingly
relate to his reported military exposure.” Id. In light of all
the circumstances, the examiner concluded that diagnosis
of military-related PTSD was “impossible at the present
time.” Id.
After reviewing the 2006 medical examination and
other evidence of record, including the additional service
records obtained in 2005, the regional office denied Mr.
Morse’s claim to service connection for PTSD. The office
noted that the C&P examiner found that Mr. Morse did not
have PTSD. That determination, the office found, carried
greater weight than the prior diagnoses of PTSD in Mr.
Morse’s record.
Mr. Morse appealed the regional office’s decision to the
Board of Veterans’ Appeals, which affirmed the regional
office’s decision in 2008. The Board noted that the record
showed several diagnoses and hospitalizations for PTSD
dating back to 1999, but that a two-day evaluation in 2000
had not supported a diagnosis of PTSD. Like the regional
office, the Board relied heavily on the 2006 C&P
examination, in which the examiner found that Mr. Morse
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MORSE v. MCDONOUGH 5
did not have PTSD but suffered from alcohol dependence,
then in remission, and nonspecific depressive disorder. Mr.
Morse did not appeal the Board’s 2008 decision, which
became final.
Mr. Morse subsequently sought to have the denial of
benefits overturned on the ground of clear and
unmistakable error. That claim was denied by the Board
in 2014 and was not further pursued.
In 2009, Mr. Morse again sought to reopen his claim.
A DVA examiner conducted a post-traumatic stress
disorder examination and diagnosed Mr. Morse as
suffering from PTSD with moderate symptoms. In
addition, in January 2010 the regional office’s Joint
Services Records Research Center (“JSRRC”) coordinator
prepared a memorandum summarizing the traumatic
events that Mr. Morse reported experiencing in Da Nang.
The memorandum noted that it is “well documented that
the Da Nang area of Vietnam often received rocket, mortar,
and small arms attacks” and added that the events that
took place, “as reported by the veteran, are confirmed and
are otherwise consistent with the circumstances,
conditions, and/or hardships of such service even though
we were unable to locate official records of the specific
occurrence.” J.A. 47–48.
In 2010, the regional office reviewed the evidence of
record and verified the stressor information Mr. Morse had
submitted “as confirmed and otherwise consistent with the
circumstances, conditions, and/or hardships of [his]
service.” J.A. 44. Based on those findings, the regional
office determined that Mr. Morse had established service-
connected PTSD. The regional office granted an effective
date of August 5, 2009, the date Mr. Morse filed his most
recent request for reopening.
Mr. Morse appealed from the regional office’s
determination as to the effective date of his benefits award,
arguing that the effective date should have been made
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6 MORSE v. MCDONOUGH
retroactive to 1999, the date he first filed a claim
referencing PTSD. After various remand proceedings,
however, the Board in 2016 upheld the regional office’s
decision.
In his appeal to the Board, Mr. Morse argued that in
its 2008 decision the Board had misapplied a DVA
regulation, 38 C.F.R. § 3.156(c). That regulation provides
that “at any time after VA issues a decision on a claim, if
VA receives or associates with the claims file relevant
official service department records that existed and had not
been associated with the claims file when VA first decided
the claim, VA will reconsider the claim.” Id. § 3.156(c)(1).
The regulation further provides that if the award of
benefits is based at least in part on the newly obtained
service department records, the award will be made
effective “on the date entitlement arose or the date VA
received the previously decided claim, whichever is later.”
Id. § 3.156(c)(3). Mr. Morse argued that if the 2008 Board
had properly “reconsidered” his claim, it would have
determined that he was suffering from PTSD from the time
he initially filed his claim in 1999.
The 2016 Board ruled that the 2008 Board’s decision
had become final as to the evidence then of record and was
not subject to revision on the same basis. In addition, the
Board ruled that because no additional service records had
been obtained since the Board’s 2008 decision, the DVA
was not required to conduct another reconsideration.
Given the finality of the 2008 decision, the 2016 Board
explained, “any prior claim for benefits was finally
resolved, and, thus, cannot serve as the basis for the award
of an earlier effective date.” J.A. 134.
On appeal from the 2016 Board’s decision, the Veterans
Court granted the parties’ joint motion for a partial
remand. The parties agreed that the remand was
warranted because the Board had not adequately discussed
whether the 2010 memorandum from the DVA’s JSRRC
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MORSE v. MCDONOUGH 7
coordinator was an “official service department record”
that would trigger the reconsideration requirement of
section 3.156(c) in connection with the 2009 reopening
request.
On remand, the Board in 2018 found that the 2010
JSRRC memorandum did not constitute an “official service
department record” within the meaning of section 3.156(c).
For that reason, the 2010 memorandum did not require the
DVA and the Board to reconsider Mr. Morse’s claim
following his 2009 reopening request. The Board therefore
concluded, as it had in 2016, that the proper effective date
for Mr. Morse’s benefits award was August 5, 2009, the
date on which Mr. Morse filed his most recent request to
reopen.
The Board rejected, once again, Mr. Morse’s argument
that it should reconsider the original 2002 denial. Citing
Blubaugh v. McDonald, 773 F.3d 1310 (Fed. Cir. 2014), the
Board explained that the service department records
received in 2005 did not justify an earlier effective date.
The Board noted that those records “were specifically
considered as part of a merits reconsideration of the
Veteran’s claim in the unappealed January 2008 Board
decision.” J.A. 160. The 2008 Board’s consideration of
those records in that proceeding, the 2018 Board explained,
“exhausted VA’s duty to reconsider the claim under 38
C.F.R. § 3.156(c)(1).” J.A. 160–61. Consequently, the
Board ruled, “an earlier effective date based on those same
service department records is not available under 38 C.F.R.
§ 3.156(c).” J.A. 161.
The 2018 Board reiterated the point made by the 2016
Board, that Mr. Morse was “essentially attacking the
merits of the January 2008 Board decision, which is final.”
Id. Because no relevant service department records were
added to the record after the denial of Mr. Morse’s claim in
2008, the 2018 Board explained, “the Board’s January 2008
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8 MORSE v. MCDONOUGH
decision is final as to the evidence then of record, and is not
subject to revision on the same factual basis.” Id.Furthermore, the 2018 Board noted that although the
2008 Board had “reopened the claim rather than
reconsidering it,” the 2008 Board “did in fact reconsider the
claim for service connection.” J.A. 162. Therefore,
according to the Board, while section 3.156(c) required the
DVA “to reconsider the 2002 denial of PTSD based on the
subsequent association of relevant service department
records, such was accomplished in the January 2008 Board
decision.” Id.Mr. Morse appealed to the Veterans Court, which
affirmed. The court agreed with the 2018 Board that the
2008 Board’s ruling became final when it was not appealed
and that “VA’s obligation to reconsider the PTSD claim
upon receipt of new service department records was
exhausted in 2008.” Morse v. Wilkie, No. 18-4145, 2020 WL
959783, at *5 (Vet. App. Feb. 28, 2020). Moreover, the
court concluded that although the 2008 Board referred to
the claim as being “reopened” rather than “reconsidered,”
the 2008 Board had in fact conducted a “holistic reweighing
of all record evidence and adjudication of the claim on the
merits,” which “satisfies the duty to reconsider under
§ 3.156(c).” Id. at *4. Finally, the court ruled that the 2010
memorandum by the regional office’s JSRRC coordinator
did not constitute a service department record that
triggered a renewed obligation to reconsider Mr. Morse’s
claim. Id. at *6–7.
In any event, the court concluded that the 2008 Board
had reviewed Mr. Morse’s PTSD claim in light of the
evidence of record at the time service connection was
originally sought, along with the service department
records obtained in 2005 and other evidence developed
later. Id. at *4. The court held that the Board, having in
effect “reconsidered” Mr. Morse’s claim in 2008, was not
required to do so again. Id. at *5–6.
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MORSE v. MCDONOUGH 9
II
Mr. Morse raises two principal claims on appeal: (1)
that the 2008 Board did not properly “reconsider” Mr.
Morse’s claim as required under 38 C.F.R. § 3.156(c); and
(2) that the DVA employee’s 2010 memorandum is a service
department record and thus the 2018 Board should have
reconsidered Mr. Morse’s 1999 claim pursuant to section
3.156(c).
A
Section 3.156(a) of the DVA regulations governing
benefit claims for service-connected injuries or diseases
provides that previously adjudicated claims can be
reopened upon the presentation of “new and material
evidence.” 38 C.F.R. § 3.156(a). If benefits are granted
after the claim is reopened, the effective date from which
those benefits are awarded is the date on which the request
for reopening was filed. Id.Section 3.156(c) of the regulations creates an exception
to that rule. That provision applies when a veteran seeks
to reopen a claim and official service department records
are obtained that were not previously part of the claims
file. 38 C.F.R. § 3.156(c)(1). In that situation, the DVA is
required to “reconsider” the veteran’s claim, taking into
account all the evidence of record, including the newly
obtained service department records. Id. If the veteran is
then granted benefits based at least in part on the service
department records, the award of benefits is made
retroactive to the date of the veteran’s original claim, or the
date on which the veteran became eligible for benefits,
whichever is later. Id. § 3.156(c)(3); see Jones v. Wilkie, 964
F.3d 1374, 1379 (Fed. Cir. 2020); Blubaugh, 773 F.3d at
1313.
1
At the outset, the government contends Mr. Morse’s
claims do not fall within this court’s limited jurisdiction to
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10 MORSE v. MCDONOUGH
review decisions of the Veterans Court. Under 38 U.S.C.
§ 7292(a), we have jurisdiction to review any interpretation
of a statute or regulation that was relied on by the Veterans
Court in making its decision. Our jurisdiction does not
extend to the review of a challenge to a factual
determination or a challenge to a law or regulation as
applied to the facts of a particular case, except to the extent
that an appeal presents a constitutional question. Id.§ 7292(d)(2).
We do not agree with the government that this case
falls entirely outside our jurisdiction. The appeal in this
case turns at least in part on a challenge to the Veterans
Court’s interpretation of section 3.156(c) of the DVA’s
regulations. In the course of our review, we confine
ourselves to addressing Mr. Morse’s arguments that flow
from his challenge to the Veterans Court’s interpretation
of that regulation.
2
On the merits, Mr. Morse’s challenge to the 2008
Board’s ruling fails because Mr. Morse did not appeal the
decision of the 2008 Board, which then became final.
Ordinarily, a final decision of the DVA on a benefit claim is
not subject to challenge other than on grounds of clear and
unmistakable error or upon the submission of new and
material evidence. See Young v. McDonald, 766 F.3d 1348,
1350 (2014); Stanley v. Principi, 283 F.3d 1350, 1357 (Fed.
Cir. 2002); Routen v. West, 142 F.3d 1434, 1437–38 (Fed.
Cir. 1998).
Mr. Morse argues that section 3.156(c) of the DVA’s
regulations renders the 2008 Board’s decision non-final
because of the service department records that the DVA
received in 2005. The problem with that argument is that
section 3.156(c) provides an exception to the finality of
decisions made before previously unavailable service
department records are obtained and considered by the
DVA. In this case, the Board’s 2008 decision was made
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MORSE v. MCDONOUGH 11
after those records were obtained and considered by the
DVA. Although Mr. Morse believes the 2008 Board’s
consideration of the service department records obtained in
2005 was flawed, that argument is foreclosed, as the
Veterans Court pointed out, because Mr. Morse did not
appeal the 2008 Board’s decision. 2
As of 2009, Mr. Morse’s only avenue for relief on his
PTSD claim was to seek reopening of his claim for new and
material evidence under section 3.156(a). He pursued that
avenue of relief and succeeded. As a result, he received
benefits retroactive to August 5, 2009, the date he filed that
request to reopen.
Citing section 3.156(c), Mr. Morse contends that his
award of benefits should have been made retroactive to the
date of his initial claim in 1999. The problem with his
argument is that there were no new service department
records introduced into the record during the 2009
reopening proceeding, as explained in Part II-B below.
Section 3.156(c) is therefore inapplicable to the 2009
reopening proceeding, which is now before the court, and
Mr. Morse is thus not eligible for benefits running back to
the date of his first PTSD claim. See Blubaugh, 773 F.3d
at 1314 (Paragraphs (c)(3) and (c)(4) of section 3.156 do not
apply if “the VA has already examined the newly
associated service record and, despite that record, denied
the veteran’s claim on the merits.”).
Mr. Morse argues that the 2008 Board’s decision was
not final for another reason: because in 2017 the Veterans
Court remanded the matter to the Board for further
proceedings. That argument is meritless. The Veterans
2 In 2016, the Board addressed and rejected Mr.
Morse’s claim that the 2008 Board’s decision contained
clear and unmistakable error. That decision was not ap-
pealed and became final.
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12 MORSE v. MCDONOUGH
Court remanded the matter for the Board to explain why it
determined that the 2010 memorandum by the DVA’s
JSRRC coordinator was not an official service department
record. The question whether that 2010 memorandum was
an official service department record has no effect on the
finality of the 2008 Board’s decision, which pertained to the
2004 request for reopening.
Because the 2008 Board’s decision is final, we do not
address the merits of that decision, but only review the
Veterans Court’s decision to treat the 2008 Board’s decision
as a reconsideration. As the Veterans Court concluded, the
2008 Board in effect conducted a reconsideration of Mr.
Morse’s claim, even though it did not cite section 3.156(c)
in its ruling or refer to its action as a reconsideration.
Specifically, the 2008 Board analyzed all the evidence of
record, including the service department records obtained
in 2005. As the Veterans Court explained, section 3.156(c)
requires nothing more.
For that reason, as the Veterans Court concluded, Mr.
Morse was not deprived of any procedural right to which
he was entitled under section 3.156(c).
B
Mr. Morse’s second principal contention is that the
2010 memorandum from the regional office’s JSRRC
coordinator qualified as an official service department
record and therefore when the DVA granted Mr. Morse
service connection for his PTSD in 2010, it was required to
make that award of benefits retroactive to the date of his
initial claim. The Veterans Court rejected that
argument, concluding that the 2010 memorandum was
merely an internal DVA communication and not an official
service department record within the meaning of section
3.156(c).
The government submits that Mr. Morse’s argument
regarding that memorandum falls outside our jurisdiction
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MORSE v. MCDONOUGH 13
under 38 U.S.C. § 7292. In pertinent part, section 7292(a)
limits our jurisdiction over decisions of the Veterans Court
to “a review of the decision with respect to the validity of a
decision of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the Court in making the decision.” A
second subsection of section 7292 dictates that we lack
jurisdiction over any “challenge to the application of a law
or regulation to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2)(B).
The Veterans Court determined that, as a matter of
law, an internal memorandum from a DVA employee
commenting on evidence already of record does not
constitute a service department record under section
3.156(c). That determination is a legal interpretation of a
regulation that was relied on by the Veterans Court and
thus falls within our jurisdiction under section 7292(a).
Further, it appears that there is no factual dispute as to
the contents or provenance of the 2010 memorandum, and
thus the resolution of the legal issue would be sufficient,
standing alone, to establish that Mr. Morse’s argument
regarding that memorandum is without merit. Section
7292(d)(2)(B) would therefore not appear to create a
jurisdictional bar in this case. See Thompson v. Shinseki,
682 F.3d 1377, 1388 (Fed. Cir. 2012); Halpern v. Principi,
384 F.3d 1297, 1306 (Fed. Cir. 2004). To the extent that
there is a factual dispute regarding the legal status of the
2010 memorandum, resolution of that issue would entail
an application of law to fact and thus would fall outside our
jurisdiction in light of section 7292(d)(2)(B).
The Board found that the JSRRC coordinator’s 2010
memorandum was produced by a DVA employee, not a
service department, and that it merely summarized
information that was already of record. In particular, the
Board found that the memorandum recited that “the
events that took place as reported by the Veteran are
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14 MORSE v. MCDONOUGH
confirmed and are otherwise consistent with the
circumstances, conditions, and/or hardships of such service
even though official records of the specific occurrence were
unable to be located.” J.A. 157. In sum, the Board found
that the memorandum did not contain any new
information from official service department records, and
thus did not constitute “an official service department
record” for purposes of section 3.156(c). The Veterans
Court sustained the Board’s findings and its conclusion on
that issue. In view of the Board’s findings, the Veterans
Court committed no legal error in reaching that conclusion.
III
We have considered Mr. Morse’s other arguments but
have determined that none of them establish reversible
error. We therefore uphold the decision of the Veterans
Court.
AFFIRMED