Newgard v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
HOWARD NEWGARD,
Claimant-Appellant,
v.
ERIC K. SHINSEKI., SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7128
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-249, Chief Judge William
P. Greene, Jr.
__________________________
Decided: February 2, 2011
__________________________
HOWARD NEWGARD, Spencer, Iowa, pro se.
DAVID M. HIBEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and STEVEN
NEWGARD v. DVA 2
J. GILLINGHAM, Assistant Director. Of counsel on the
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
eral Counsel, and MICHAEL G. DAUGHERTY, Attorney,
Office of the General Counsel, United States Department
Veterans Affairs, of Washington, DC.
__________________________
Before RADER, Chief Judge, PLAGER and GAJARSA, Circuit
Judges.
PER CURIAM.
The issues in this veteran’s appeal are (1) whether the
veteran’s claim was properly dismissed by the Court of
Appeals for Veterans Claims (“Veterans Court”) under res
judicata and (2) whether the Veterans Court failed to
afford Mr. Newgard due process under the Fifth Amend-
ment. For the reasons explained below, we find no re-
versible error in the judgment of the Veterans Court; it is
affirmed.
I. BACKGROUND
Howard Newgard served on active duty with the
United States Army for less than five months in 1969, his
term of service cut short due to a torn medial meniscus in
his left knee. In August 1969, while undergoing an army
training exercise, Mr. Newgard fell and was seen by army
medical staff for complaints of pain in his knee. Four
years prior to Mr. Newgard entering the army, he had
injured his left knee in a tobogganing accident. He was
put on limited duty and recommended for separation of
service. Mr. Newgard was discharged in October 1969
because of his left knee disability; the injury was deter-
mined to have existed prior to his entry into service and
not aggravated therein.
3 NEWGARD v. DVA
Mr. Newgard filed his original service connection
claim with the Veterans Administration in October 1970,
contending that the earlier injury to his knee was only a
sprain and that his required service activities in August
1969 either caused the tear in his medial meniscus or, at
a minimum, aggravated any lingering problems from the
prior accident. The Regional Office (“RO”) denied his
claim in a March 1971 rating decision on the basis that
the pre-existing left knee condition was not aggravated by
active service (“March 1971 rating decision”). Mr. New-
gard did not appeal the RO decision, which became a final
adjudication of the claim. See 38 U.S.C. § 7105(c); 38
C.F.R. §§ 20.302, 20.1103.
In August 1995, Mr. Newgard filed a request to re-
open his claim of entitlement to service connection based
on new and material evidence. In re Newgard, No. 03-08
191, slip op. at 13 (Bd. Vet. App. Jan. 7, 2008). Along
with this request, Mr. Newgard filed an application for
nonservice-connected pension benefits. In October 1995,
the RO determined that Mr. Newgard failed to submit
new and material evidence sufficient to reopen his claim
of entitlement (“October 1995 decision”). The RO also
denied the requested nonservice-connected pension bene-
fits. Mr. Newgard filed a notice of disagreement (“NOD”)
regarding the claim of entitlement and thus this claim
remained pending.
In December 1995, Mr. Newgard resubmitted an ap-
plication for nonservice-connected pension benefits and
entitlement to service connection for a left knee condition.
In October 1996, the RO again denied the request to
reopen the claim of entitlement to service, but awarded
Mr. Newgard nonservice-connected pension benefits and
evaluated his left knee disability at 10 percent. Newgard
NEWGARD v. DVA 4
v. Shinseki, No. 08-0249, slip op. at 3 (Vet. App. Apr. 30,
2010).
Then, in March 1997, Mr. Newgard submitted a new
challenge to the March 1971 rating decision, alleging it
contained clear and unmistakable error (“CUE”). A
December 1997 RO decision found that the March 1971
rating decision did not contain CUE. Id. at 2-3. Mr.
Newgard did not appeal the December 1997 CUE deci-
sion, and thus it became final. See 38 U.S.C. § 7105(c).
In December 2003, on the basis of a medical opinion
submitted by Mr. Newgard’s physician, the RO reevalu-
ated the still-open October 1995 decision. In re Newgard,
No. 03-08 191, slip op. at 11 (Bd. Vet. App. Jan. 7, 2008).
The physician opined that while the torn medial meniscus
may have begun with the tobogganing accident, it was
worsened by Mr. Newgard’s active service. Id. The
reevaluation by the RO resulted in a service connection
for Mr. Newgard’s torn meniscus and an award of a
disability rating of 20 percent. Id. at 13. The effective
date of the service connection was originally set at July
19, 2001, but in a May 2004 rating decision it was made
retroactive to August 14, 1995—the date Mr. Newgard
reopened his claim of entitlement. Id. The 20 percent
disability rating, however, was not made retroactive
because the Board of Veterans’ Appeals (“Board”) found
that prior to July 2001 Mr. Newgard’s left knee had a full
range of motion. Id. at 23. Thus, Mr. Newgard’s service
connection disability, for the period of August 14, 1995 to
July 18, 2001, was awarded a noncompensable zero
percent rating.
Meantime, in April 2003, Mr. Newgard submitted yet
another challenge to the March 1971 rating decision
based on CUE. Newgard v. Shinseki, No. 08-0249, slip op.
5 NEWGARD v. DVA
at 1-2 (Vet. App. Apr. 30, 2010). This claim was denied as
part of the May 2004 rating decision issued by the RO.
Mr. Newgard appealed the December 2003 and May 2004
rating decisions to the Board and the Board upheld the
rating decisions. Mr. Newgard then appealed the Board’s
decision to the Veterans Court and asserted that his due
process rights were also violated by the Secretary’s ac-
tions to date. Id.
The Veterans Court found that Mr. Newgard’s April
2003 CUE motion was barred by res judicata and thus
vacated and dismissed that portion of the Board’s deci-
sion. Id. at 2. However, the Veterans Court concluded
that the Board failed to consider all the relevant evidence
of record concerning the compensable rating assigned to
Mr. Newgard’s left-knee disability prior to July 19, 2001,
and therefore vacated and remanded that portion of the
Board’s decision for readjudication. Id. In regards to Mr.
Newgard’s constitutional challenge, the Veterans Court
found that because the matter was being remanded for
readjudication, the due process argument was moot. Id.
at 4. Mr. Newgard appealed the Veterans Court decision
to this court; we have jurisdiction under 38 U.S.C. § 7292.
II. DISCUSSION
Under 38 U.S.C. § 7292, this court has jurisdiction to
review “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.” 38 U.S.C. § 7292(a). We have jurisdiction
"to determine whether the legal requirement of the stat-
ute or regulation has been correctly interpreted in a
particular context where the relevant facts are not in
dispute." Szemraj v. Principi, 357 F.3d 1370, 1375 (Fed.
NEWGARD v. DVA 6
Cir. 2004). However, except with respect to constitutional
issues, we do not have jurisdiction to "review (A) a chal-
lenge 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) (2000). We review issues of
law without deference. Wagner v. Principi, 370 F.3d
1089, 1092 (Fed. Cir. 2004).
Mr. Newgard argues that the Veterans Court erred in
relying on res judicata to deny his CUE claim because (1)
the principle of res judicata does not apply to RO deci-
sions and (2) he did not receive a full and fair opportunity
to be heard on the CUE issue. Mr. Newgard is incorrect
on both assertions. The “[p]rinciples of finality and res
judicata apply to agency decisions that have not been
appealed and have become final.” Cook v. Principi, 318
F.3d 1334, 1336-1337 (Fed. Cir. 2002). The principal of
finality means that if a veteran fails to appeal an RO
decision concerning a claim, the decision becomes final,
and the claim cannot be reopened unless explicitly pro-
vided otherwise by law. Id. at 1336 (citing 38 U.S.C.
§ 7105(c)).
CUE proceedings represent one of the limited excep-
tions to the rule of finality. They permit an attack on a
Board decision where "a very specific and rare kind of
error [is made] that when called to the attention of later
reviewers compels the conclusion, to which reasonable
minds could not differ, that the result would have been
manifestly different but for the error." 38 C.F.R.
§ 20.1403. Consequently, CUE proceedings are funda-
mentally different from direct appeals. Robinson v.
Shinseki, 557 F.3d 1355, 1360-1361 (Fed. Cir. 2009). For
the purpose of res judicata each new CUE theory is con-
sidered independent, but “[o]nce there is a final decision
on a motion under this subpart relating to a prior Board
7 NEWGARD v. DVA
decision on an issue, that prior Board decision on that
issue is no longer subject to revision on the grounds of
clear and unmistakable error. Subsequent motions
relating to that prior Board decision on that issue shall be
dismissed with prejudice.” 38 C.F.R. § 20.1409(c).
Mr. Newgard’s March 1997 and April 2003 CUE
claims are the same. Both challenge the 1971 RO as-
sessment that his knee injury existed prior to his en-
trance into the service and was not aggravated by his
activities in August 1969. Mr. Newgard’s two CUE claims
may contain slightly different wording but they still allege
the exact same error. Merely repackaging a CUE claim to
contain different sentences does not create an independ-
ent claim immune from the doctrine of res judicata.
Further, because Mr. Newgard failed to appeal the 1997
RO decision regarding his CUE claim, the decision was
final and could not be heard by the Board. See 38 U.S.C.
§ 7105(c). Thus, we hold that the Veterans Court prop-
erly vacated and dismissed Mr. Newgard’s CUE appeal.
Mr. Newgard also asserts that the Veterans Court
erred in dismissing his CUE claim with prejudice because
they failed to consider the merits of his claim. Because
the issue of whether CUE was present in the 1971 RO
decision was not properly before the Veterans Court, the
issue is not properly before this court. Thus, we cannot
address it. See 38 U.S.C. § 7292(a).
Next, Mr. Newgard alleges that the VA violated his
due process rights by failing to give proper weight to the
evidence he presented regarding his injury. This is not a
challenge to the constitutionality of the Veterans Court’s
adjudication, but it is instead an argument that the 1971
RO decision was erroneous. Because the 1971 RO deci-
sion is not properly before this court to review, we dismiss
the appeal of this issue.
NEWGARD v. DVA 8
Lastly, Mr. Newgard argues that the Veterans Court
erred in granting the Secretary’s motion for a 30-day
extension of time to file a brief. The decision of whether
to grant an extension is a purely procedural question.
Congress has provided the Court of Veterans Appeals the
express authority to promulgate its rules of practice and
procedure, see 38 U.S.C. § 7264(a), and like other courts it
is appropriate for the Veterans Court to have discretion-
ary authority to apply its own rules. Carbino v. West, 168
F.3d 32, 35 (Fed. Cir. 1999). Consequently, this claim
raises no issue within this court’s purview and therefore
is dismissed.
AFFIRMED IN PART AND DISMISSED IN PART
COSTS
Each party shall bear its own costs.