Franklyn Morrison v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRANKLYN E. MORRISON,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7109
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-4268, Judge William A. Moor-
man.
______________________
Decided: April 26, 2013
______________________
BARBARA J. COOK, Attorney at Law, of Cincinnati,
Ohio, argued for claimant-appellant.
BARBARA E. THOMAS, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
2 FRANKLYN MORRISON v. SHINSEKI
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel on the brief MICHAEL J. TIMINSKI, Deputy
Assistant General Counsel, and AMANDA BLACKMON,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
______________________
Before O'MALLEY, BRYSON, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge BRYSON.
Dissenting opinion filed by Circuit Judge REYNA.
BRYSON, Circuit Judge.
Franklyn Morrison appeals from a decision of the
Court of Appeals for Veterans Claims (“CAVC”). The
court upheld a ruling by the Board of Veterans’ Appeals
denying Mr. Morrison’s request for an earlier effective
date for disability benefits he is receiving from the De-
partment of Veterans Affairs (“DVA”). We affirm.
I
Mr. Morrison, a former member of the United States
Marine Corps, sought disability benefits for post-
concussion syndrome stemming from an in-service injury.
In 1979, a regional office of the Veterans Administration
(as the DVA was then called) awarded him service con-
nection for his disability and rated the degree of his
disability at 100 percent. The regional office, however,
found “no evidence of psychiatric disease,” noted that “[n]o
seizure activity ha[d] been observed,” and informed Mr.
Morrison that he would be required to appear for a re-
examination in 1981 to determine if his condition had
improved.
In early 1981, the Veterans Administration scheduled
a follow-up physical examination, first for May and then
for July. Mr. Morrison failed to report for either examina-
FRANKLYN MORRISON v. SHINSEKI 3
tion. In July 1981, Mr. Morrison informed the Veterans
Administration that he would be attending school in
Fairbanks, Alaska. In September, therefore, the regional
office notified him that another physical examination
would be scheduled in December 1981, this time in Alas-
ka. Mr. Morrison again did not appear at the designated
time. Later that month, the regional office advised Mr.
Morrison that because he had failed to appear for the
scheduled medical appointments, his disability benefits
would be discontinued. Payments were stopped as of
January 1, 1982.
In early 1982, the Veterans Administration received a
communication from Mr. Morrison. Although the letter
was signed and dated August 24, 1981, date stamps on
that document reflect that it was not received by the VA
until January or early February of 1982. Accordingly, the
Board and the CAVC refer to that letter as the February
1982 letter. In that letter, Mr. Morrison stated that he
was responding to the notice to appear for a physical
examination on July 31, 1981. He claimed that he had
not received the notice until August 19, 1981. He stated
that he wanted to re-schedule his physical examination,
and he urged that his compensation not be discontinued.
The regional office treated the February 1982 let-
ter as a request by Mr. Morrison to reopen his case, and it
conducted a physical examination in March 1982. Follow-
ing that examination, the regional office determined that
Mr. Morrison’s condition no longer warranted disability
compensation, and it assigned him a rating of zero per-
cent, effective January 1, 1982. Mr. Morrison filed a
notice of disagreement. As a result, he received a second
re-examination the following year. Following that exami-
nation, the regional office increased his rating to 10
percent, retroactive to the same January 1, 1982, date on
which his disability payments had been discontinued.
4 FRANKLYN MORRISON v. SHINSEKI
Mr. Morrison appealed that determination to the
Board of Veterans’ Appeals, seeking an increased rating
for his post-concussive disability to at least 50 percent.
The Board denied his request in December 1984. Noting
the absence of a diagnosis of nonpsychotic organic brain
syndrome, and applying the rating schedule designated
for “brain disease due to trauma with purely subjective
complaints,” the Board upheld the 10 percent rating.
In 1997, the DVA reopened Mr. Morrison’s case. After
determining that he was suffering from a condition simi-
lar to a major seizure disorder, the regional office in-
creased his rating to 100 percent. Following that action,
Mr. Morrison sought to have the 100 percent rating
applied retroactively to 1982. Mr. Morrison first asked
the Board to do so in 1997, but the Board denied that
request and made his 100 percent rating effective as of
January 5, 1996, the date he moved to reopen his claim.
In 2007, Mr. Morrison returned to the Board and filed
a motion contending that the Board’s 1984 decision con-
tained clear and unmistakable error (“CUE”). He predi-
cated his argument on an assertion that the Board had
improperly weighed the evidence before it in 1984. After
an adverse ruling by the Board and an appeal to the
CAVC, the case was remanded to the Board pursuant to a
joint motion for remand. The parties agreed that Mr.
Morrison would abandon the CUE theory addressed by
the Board but could present an argument that the 1984
Board had committed CUE when it failed to apply 38
C.F.R. § 3.343(a), which provided that a veteran’s disabil-
ity rating would not be reduced from 100 percent without
a physical examination showing material improvement.
The Board rejected that argument in 2008 on the
ground that section 3.343 was not applicable to a veteran
whose disability compensation had already been discon-
tinued for failure to report for a physical re-examination.
Mr. Morrison again appealed to the CAVC, and the court
FRANKLYN MORRISON v. SHINSEKI 5
again remanded the case to the Board pursuant to anoth-
er joint motion for remand. This time, the parties agreed
that the Board should consider whether Mr. Morrison had
an “adequate reason” for not reporting for the re-
examinations scheduled by the Veterans Administration
in 1981, as contemplated by the regulation governing
discontinued payments, 38 C.F.R. § 3.655.
In a 2009 decision, the Board once more denied Mr.
Morrison’s CUE claim. On the merits, it ruled that Mr.
Morrison had failed to provide an adequate reason for
failing to appear for the December 1981 physical exami-
nation. In addition, the Board rejected Mr. Morrison’s
argument that the 1984 Board had erred by declining to
review the 1981 decision to discontinue his benefits for
failure to report. The 2009 Board explained that the 1984
Board was reviewing Mr. Morrison’s challenge to his 10
percent rating; his complaint that the regional office’s
December 1981 decision lacked an “adequate reason”
finding under section 3.655 “was not properly before the
Board” at that time.
Mr. Morrison again appealed to the CAVC. He ar-
gued (1) that his letter dated August 24, 1981, constituted
a notice of disagreement with the January 1, 1982, dis-
continuance of his benefits, (2) that the Board in 1984
should have reversed the decision to discontinue his
benefits in January 1982 because there had been no
explicit finding that he lacked an adequate reason for
failing to report for his physical examination, (3) that he
had such a reason, and (4) that the Board was required to
determine whether he had such a reason before affirming
his 10 percent disability rating in 1984.
The CAVC rejected each of those arguments. First, it
found that Mr. Morrison had not filed a notice of disa-
greement with the December 1981 decision to discontinue
his benefits, and thus the Board in 1984 was not required
to address his complaints about that decision. Second,
6 FRANKLYN MORRISON v. SHINSEKI
the court ruled that even if Mr. Morrison had perfected an
appeal from that decision, the governing regulation, 38
C.F.R. § 3.655 (as in effect between 1981 and 1984), did
not require the Veterans Administration to make an
express finding that Mr. Morrison lacked an adequate
reason for missing his physical examination appoint-
ments. Finally, the court held that even if such a finding
were needed, the record did not support his claim that the
Board would have had to find that he had an adequate
reason for missing his appointments. Accordingly, the
court held that Mr. Morrison had failed to show that the
1984 Board decision contained CUE.
II
In his appeal to this court, Mr. Morrison returns to
the two issues on which his case was previously remanded
from the CAVC to the Board. In particular, he argues
that the CAVC misinterpreted DVA regulations in two
respects: first, by applying the regulation governing
discontinuances of benefits (38 C.F.R. § 3.655), it failed to
make an explicit finding, based on evidence, that there
was no adequate reason for Mr. Morrison’s failure to
appear for his scheduled physical examinations; and
second, by failing to apply the regulation governing reduc-
tions in ratings (38 C.F.R. § 3.343) when it reduced his
rating from 100 percent to zero percent in 1982 without a
prior physical examination. We hold that both arguments
are procedurally barred and that, even if they were not,
Mr. Morrison has not shown that curing the claimed
errors would have changed the outcome of his ratings
decisions in the early 1980s.
1. To begin with, neither issue is properly before this
court. First, as to section 3.655, the CAVC held that Mr.
Morrison did not submit a notice of disagreement with
regard to the December 1981 decision to discontinue his
benefits, but instead merely sought reopening of his case
after the discontinuation was effected. Mr. Morrison
FRANKLYN MORRISON v. SHINSEKI 7
argued that his February 1982 letter constituted a notice
of disagreement with the decision to discontinue his
benefits in December 1981. But the 2009 Board disagreed
with that characterization, because the letter was signed
and dated August 24, 1981, before the December 1981
suspension of benefits, and it referred to Mr. Morrison’s
failure to appear for the July 1981 scheduled examina-
tion, not the December 1981 scheduled examination.
Based on those facts, the CAVC agreed with the Board
that the February 1982 letter “does not express disagree-
ment with the December 1981 RO decision” and therefore
“the Board in 1984 was not required to address the RO’s
December 1981 decision.”
The CAVC’s determination that the February 1982
letter did not constitute a notice of disagreement that
gave the Board jurisdiction to review the December 1981
discontinuation decision is, at most, an application of law
to fact, and it therefore falls outside our jurisdiction. See
38 U.S.C. § 7292(d)(2); Conway v. Principi, 353 F.3d 1369,
1372 (Fed. Cir. 2004). Consequently, we are bound by the
findings that the section 3.655 issue Mr. Morrison now
seeks to raise was not presented as a claim for the 1984
Board to resolve. Because the propriety of the decision
discontinuing Mr. Morrison’s benefits was not presented
to the Board, the Board’s 1984 decision did not discuss
that claim and cannot be held to be clearly and unmistak-
ably erroneous for not doing so. 1
1 The dissent contends that we have jurisdiction
over the section 3.655 issue because the “interpretation of
the 1981 notice of disagreement regulation is a legal issue
properly before this court.” In fact, neither the VA nor the
CAVC interpreted the 1981 regulation governing notices
of disagreement. Citing the language of the regulation,
the Board found as a matter of fact that the February
1982 letter did not “express[] disagreement or dissatisfac-
8 FRANKLYN MORRISON v. SHINSEKI
Mr. Morrison argues that the 1984 Board was obligat-
ed to assess the propriety of the discontinuance—and thus
the proper procedure under section 3.655—as part of its
overall consideration of the reduction in his rating. In
support of that argument, he invokes 38 C.F.R. §
20.1403(a), which provides that a previous Board decision
may contain CUE if “the statutory and regulatory provi-
sions extant at the time were incorrectly applied,” and he
contends that the 1984 Board “erred in failing to apply
the law that existed at the time.” But Mr. Morrison’s
failure to file a notice of disagreement as to the discontin-
uation of benefits meant that there was no challenge to
that action before the Board in 1984, so on the record
before it the Board cannot be held to have “incorrectly
applied” any statutory or regulatory provisions at that
tion with [the December 1981] decision”; the Board fur-
ther found that the letter was dated and signed on August
24, 1981, prior to the issuance of the December 1981
decision and that Mr. Morrison “had not received the
December 1981 decision at the time he wrote the [letter].”
The CAVC agreed with the Board that the letter “does not
express disagreement with the December 1981 RO deci-
sion” as it “fails to reference any adjudicative action, but
rather provides an excuse for missing the July 1981 VA
examination.” The court added that “[t]he appellant’s
simple request that his benefits not be reduced based on
his failure to report for his July VA examination cannot
be reasonably construed as a disagreement with the
December 1981 RO determination, which suspended his
benefits based on his failure to report for this December
VA examination. . . . The letter’s substance simply fails to
present disagreement with an adjudicative action.” While
the dissent does not agree with that conclusion, the
dissent’s objection is not to the court’s interpretation of a
regulation, but to its application of that regulation to the
particular facts of this case.
FRANKLYN MORRISON v. SHINSEKI 9
time. See Cook v. Principi, 318 F.3d 1334, 1343 (Fed. Cir.
2002) (en banc), quoting Caffrey v. Brown, 6 Vet. App.
377, 383 (1994) (in order for an error to rise to the level of
CUE, the asserted error “must have occurred on the
record ‘as it existed at the time of the disputed adjudica-
tion’”); Pierce v. Principi, 240 F.3d 1348, 1354 (Fed. Cir.
2001).
Mr. Morrison’s position, in essence, is that the 1984
Board was required to judge the propriety of the discon-
tinuance pursuant to section 3.655, even though in order
to do so it would have had to anticipate and rule on a
claim that Mr. Morrison never raised in his 1984 appeal.
Before the Board in 1984, Mr. Morrison’s complaint was
squarely focused on the medical merits of the decision to
assign him a rating of only 10 percent; he did not make
the separate claim that the discontinuance of his benefits
was flawed because the regional office failed to find that
he lacked an “adequate reason” for missing his medical
examinations. We decline to find that the Board commit-
ted clear and unmistakable error with regard to the
section 3.655 claim when Mr. Morrison did not challenge
the discontinuation decision before the Board.
Mr. Morrison gives only passing attention to his sec-
ond claim, that the Board violated section 3.343 inde-
pendent of the alleged violation of section 3.655. In any
event, however, that claim is barred because Mr. Morri-
son waived it by not presenting it to the CAVC. Section
3.343 provides that a total disability rating “will not be
reduced, in the absence of clear error, without examina-
tion showing material improvement in physical or mental
condition.” The 2009 Board held that the regulation does
not apply in the case of a veteran who, like Mr. Morrison,
has had his disability benefits discontinued for failure to
report for re-examination. Mr. Morrison did not challenge
that interpretation of section 3.343 before the CAVC.
Instead, his argument before the CAVC was that the
Veterans Administration violated section 3.655 by discon-
10 FRANKLYN MORRISON v. SHINSEKI
tinuing his benefits without first making an affirmative
finding that he had no adequate explanation for his
failure to attend the scheduled physical examinations.
His argument under section 3.343 was dependent on that
section 3.655 point: He claims that if his benefits had not
been unlawfully discontinued, in violation of section
3.655, he would have been entitled to receive a medical
examination under section 3.343 before his rating was
reduced. Mr. Morrison did not argue that section 3.343
applied even if the discontinuation of benefits was lawful.
Mr. Morrison’s failure to press a separate argument
based on section 3.343 before the CAVC, notwithstanding
that he was represented by counsel, constitutes a waiver
of that argument for purposes of the present appeal. See
Andre v. Principi, 301 F.3d 1354, 1363 (Fed. Cir. 2002).
Thus, Mr. Morrison’s arguments before this court are
procedurally defective because he did not preserve his
section 3.655 claim before the Board in his 1984 appeal,
and he did not preserve a separate section 3.343 claim
before the CAVC in the present appeal.
2. Apart from those procedural grounds, there is an-
other problem with Mr. Morrison’s CUE claim. Although
he contends that he was prejudiced by the application of
section 3.655 in his case, the relief he requests is for the
court to hold that pursuant to section 3.343 he was enti-
tled to a physical examination and a finding of material
improvement before his rating was reduced. Yet a medi-
cal examination was promptly scheduled and held in his
case after he contacted the Veterans Administration in
January 1982, and a second examination was held in
1983. The upshot of those examinations was that his
rating was reduced to 10 percent, retroactive to January
1, 1982.
Mr. Morrison has not given us any reason to believe
that the outcome of his medical examinations would have
been any different if the regional office had not discontin-
FRANKLYN MORRISON v. SHINSEKI 11
ued Mr. Morrison’s benefits in January 1982 and had
conducted the medical examinations pursuant to section
3.343, rather than pursuant to his request to reopen his
claim. Following both the 1982 and 1983 examinations,
the examining physician found “no objective evidence of
disability” and “little objective physical findings to sub-
stantiate a diagnosis of post concussion syndrome.”
Although the examination that was conducted 14 years
later, in 1997, resulted in a diagnosis of a serious seizure-
like condition, there is no reason to believe that examina-
tions in 1982 or 1983 would have produced a different
result if they had been conducted under section 3.343
rather than under section 3.655. There is thus no indica-
tion in the record that a different interpretation of section
3.655 would have had the effect of avoiding the reduction
in Mr. Morrison’s rating that occurred in 1983.
It is well settled that one of the required elements of a
CUE claim is that the veteran must show that if the
claimed error had not been made, it would have manifest-
ly changed the outcome of the case. 20 C.F.R. §
20.1403(a); Cook, 318 F.3d at 1343. Mr. Morrison has not
made such a showing here, i.e., that he would not have
suffered the reduction in his rating that followed his 1982
and 1983 medical examinations. 2 We therefore reject his
2 The dissent argues that Mr. Morrison was preju-
diced by the fact that his examination was conducted
after his benefits were discontinued, because he was
required to show service connection, which he would not
have been required to show if his benefits had been ongo-
ing at the time of his 1982 examination. What that
overlooks is that service connection was never an issue in
Mr. Morrison’s case: his condition was regarded as service
connected throughout. What was at issue was the severi-
ty of his disability, and neither Mr. Morrison nor the
dissent has offered any reason to believe that the medical
conclusions as to the substantial reduction in the severity
12 FRANKLYN MORRISON v. SHINSEKI
claim that the Board in 1984 committed clear and unmis-
takable error in denying his challenge to the regional
office’s 1983 disability rating.
No costs.
AFFIRMED
of his disability would have been different if he had been
receiving benefits at the time of his 1982 examination.
Moreover, in the context of a CUE claim, the claimant
must show that the error is “undebatable” and “the sort
which, had it not been made, would have manifestly
changed the outcome at the time it was made.” Morris v.
Shinseki, 678 F.3d 1346, 1351 (Fed. Cir. 2012). It is not
enough to conclude, as the dissent does, that the VA’s
findings that Mr. Morrison was entitled to only a 10
percent disability rating “do not necessarily meet the
material improvement standard.”
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRANKLYN E. MORRISON,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7109
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-4268, Judge William A. Moor-
man.
______________________
REYNA, Circuit Judge, dissenting.
The majority concludes that Mr. Morrison’s argu-
ments are procedurally barred on the basis that he failed
to file a notice of disagreement with the regional office’s
December 1981 decision to discontinue his benefits. I find
no procedural bar in this case. Mr. Morrison’s January
14, 1982 letter to the Department of Veterans Affairs (VA)
on its face shows that he disagreed with the VA’s action,
a statement that raises his 38 C.F.R. § 3.655 arguments
properly before this court. Mr. Morrison also preserved
his 38 C.F.R. § 3.343 arguments by making them in his
2 FRANKLYN MORRISON v. SHINSEKI
recent appeal to the Court of Appeals for Veterans
Claims. For these and other reasons I set out below, I
respectfully dissent.
The majority bars Mr. Morrison’s argument that the
1984 Board committed clear and unmistakable (CUE)
error when it discontinued his benefits without consider-
ing the adequacy of his reasons for missing his examina-
tion after concluding that Mr. Morrison never filed a
notice of disagreement with the December 1981 decision.
My colleagues suggest that a letter from Mr. Morrison
dated August 24, 1981 “merely sought reopening of his
case after the discontinuation was effected.” Maj. Op. 6.
Treating Mr. Morrison’s letter as a request to reopen his
case, as the VA did, overlooks the date the letter was
actually received by the VA and the clear statement that
the VA not stop his compensation benefits. Under the
regulations, Mr. Morrison’s August 24, 1981 letter is a
notice of disagreement, not a request to reopen his case as
the VA erroneously concluded.
The 1981 regulation defining a notice of disagreement
simply requires:
A written communication from a claimant or his
representative expressing dissatisfaction or disa-
greement with an adjudicative determination of an
agency of original jurisdiction. The notice should
be in terms which can be reasonably construed as
evidencing a desire for review of that determina-
tion. It need not be couched in specific language.
Specific allegations of error of fact or law are not
required.
38 C.F.R. § 19.113 (1981) (emphases added). A notice
of disagreement is “the claimant’s notification to the [VA]
that he is challenging the regional office’s decision . . . by
appealing it to the Board of Veterans Appeals.” Hartman
v. Nicholson, 483 F.3d 1311, 1314–15 (Fed. Cir. 2007)
(emphasis added). It “initiates board review of a determi-
FRANKLYN MORRISON v. SHINSEKI 3
nation of an agency of original jurisdiction,” Burton v.
Derwinski, 933 F.2d 988, 989 (Fed. Cir. 1991) (citing 38
U.S.C. § 4005), but does not serve as the notice of appeal
itself. Instead, the VA first attempts to resolve the disa-
greement, but if unsuccessful, it issues a statement of the
case. 38 C.F.R. § 19.114(a), (b). The veteran then has the
option to perfect a substantive appeal upon receipt of the
statement of the case. Id. § 19.116. Thus, the notice of
disagreement merely provides notice of the veteran’s
disagreement without any particular format or degree of
specificity being required; what matters is that the notice
is filed with the VA within the statutory window. See
Rodriguez v. Shinseki, 455 Fed. App’x 994, 998 (Fed. Cir.
2012) (citing Rivera v. Shinseki, 654 F.3d 1377, 1381 (Fed.
Cir. 2011)).
Mr. Morrison’s letter to the VA qualifies as a notice of
disagreement under these regulations. The letter is
signed by Mr. Morrison and dated August 24, 1981, but
the VA received the letter on January 14, 1982—within
one year of its December 1981 decision. It identifies his
address as Avila Beach, CA and instructs the VA to
“[p]lease note my correct address as given below.” Joint
App’x 65. In addition, Mr. Morrison asked the VA to “not
stop [his] compensation as [he] need[ed] the income.” Id.
The majority appears to assume that the letter was
sent on or about August 1981. A reasonable conclusion is
that Mr. Morrison did not send his letter in August 1981,
but instead sent it after his benefits were discontinued on
December 22, 1981 as the circumstances suggest. 1
1 It is unreasonable to assume that the letter was
sent on or after August 24, and received by VA on or after
January 14, 1982. Such an interpretation would require
serious skepticism of the operations of either the U.S.
Post Office or the VA. I am unwilling to subscribe to this
interpretation in this case given that the VA benefits from
4 FRANKLYN MORRISON v. SHINSEKI
The request to “not stop my compensation as I need
the income” is a clear disagreement with a determination
discontinuing compensation. Since the regulations do not
require a notice of disagreement to be couched in specific
language, Mr. Morrison’s objection to the halt of his
compensation satisfies the requirement of a notice of
disagreement under the regulations. § 19.113; see Collaro
v. West, 136 F.3d 1304, 1309 (Fed. Cir. 1998) (concluding
that the veteran raised constitutional and statutory
issues even though the VA only resolved factual issues in
response to a vague notice of disagreement); Comer v.
Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009) (holding that
the VA is obligated to read appeal filings in a liberal
manner).
In my view, Comer controls this case. In that case,
the veteran, who was acting pro se at that time, appealed
a VA decision that granted him an increased post-
traumatic stress disorder (PTSD) disability rating and a
total disability based on individual unemployability
(TDIU) award, but only sought an early effective date for
the PTSD disability rating. Even though the veteran was
represented by counsel in his later CUE claim for an
earlier effective date for his TDIU award, this court
nevertheless held that he was entitled to a sympathetic
reading of his earlier notice of disagreement filing and
refused to find waiver. Indeed, it concluded that “the VA’s
the presumption of regularity in related circumstances.
See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004)
(“The presumption of regularity provides that, in the
absence of clear evidence to the contrary, the court will
presume that public officers have properly discharged
their official duties.”). Mishandling by the VA in this case
would not be unexpected considering that Mr. Morrison’s
letter has no less than three dates stamped on it, includ-
ing January 14, 1982, February 1, 1982, and February 3,
1982. Joint App’x 65–66.
FRANKLYN MORRISON v. SHINSEKI 5
duty to read an appeal submission sympathetically to
ascertain all potential claims it contains is antecedent to
its duty to ensure that an issue has been properly raised
on appeal.” Comer, 552 F.3d at 1368. In doing so, the
court emphasized that in proceedings before the Board,
“the relationship between the veteran and the govern-
ment is non-adversarial and pro-claimant.” Id. The
majority’s decision to harshly apply the notice of disa-
greement requirement is contrary to congressional pur-
pose behind the veterans’ benefits system. See Jaquay v.
Principi, 304 F.3d 1276, 1280 (Fed. Cir. 2002) (“Con-
gress’s paternalistic veterans’ benefits system care[s] for
those who served their country in uniform.”). Similarly,
the VA’s decision to disregard Mr. Morrison’s notice of
disagreement contravenes its regulations and constitutes
legal error. I conclude that Mr. Morrison’s letter satisfies
the regulations as a notice of disagreement with the VA’s
December 22, 1981 decision to discontinue his benefits. 2
The Court of Appeals for Veterans Claims compound-
ed its error by failing to address Mr. Morrison’s substan-
tive argument concerning discontinuance. Specifically,
Mr. Morrison argued that pursuant § 3.655, the VA could
not discontinue his benefits without first determining that
he lacked adequate reasons for failing to report to his VA
examination. Rather than addressing this argument, the
Court of Appeals for Veterans Claims cites cases to justify
its requirement that Mr. Morrison establish that his was
the “only and correct” interpretation of the law. Morrison
v. Shinseki, No. 09-4268, 2012 U.S. App. Vet. Claims
2 The majority suggests that our limited subject
matter jurisdiction precludes us from concluding that Mr.
Morrison’s letter was a notice of disagreement. See Maj.
Op. 7 (citing 38 U.S.C. § 7292(d)(2)). I agree with Mr.
Morrison that the VA’s interpretation of the 1981 notice of
disagreement regulation is a legal issue properly before
this court.
6 FRANKLYN MORRISON v. SHINSEKI
LEXIS 299, at *17 (Vet. App. Feb. 27, 2012) (citing Hilkert
v. West, 12 Vet. App. 145, 151 (1999) (en banc) (“An appel-
lant bears the burden of persuasion on appeals to this
Court.”), aff'd, 232 F.3d 908 (Fed. Cir. 2000) (per curiam)
(table); Berger v. Brown, 10 Vet. App. 166, 169 (1997)
(“[T]he appellant . . . always bears the burden of persua-
sion on appeals to this Court.”)). But the cases cited by
the Court of Appeals for Veterans Claims stand for the
unremarkable proposition that a veteran bears the bur-
den of persuasion on factual issues, not on establishing
that his interpretation of the law is the only and correct
one. Such a requirement imposes an exacting and unrea-
sonable standard—one that is not recognized by this court
or the Court of Appeals for Veterans Claims, precisely
because it is contrary to the uniquely pro-claimant
scheme Congress established for handling veterans’
claims. See Barrett v. Nicholson, 466 F.3d 1038, 1044
(Fed. Cir. 2006); Hodge v. West, 155 F.3d 1356, 1362–64
(Fed. Cir. 1998).
In addition, the Court of Appeals for Veterans Claims
committed error in its refusal “to speculate as to what the
law meant at the time.” Morrison, 2012 U.S. App. Vet.
Claims LEXIS 299, at *17. When the meaning of a stat-
ute is involved, statutory interpretation is not speculation
or optional. It is a process that courts are obligated to
undertake. The Court of Appeals for Veterans Claims
refusal to interpret the law that was in effect in 1981
constitutes legal error. See 38 U.S.C. § 7261(a)(1). On
this point alone, I would vacate and require the court on
remand to determine the whether § 3.655 as codified in
1981 required an adequate reason determination and, if
so, whether the facts establish an adequate reason for Mr.
Morrison to miss his December 1981 examination. 3
3 The VA inconsistently concluded that Mr. Morri-
son had an adequate reason for missing his May and July
1981 examinations, but not his December 1981 examina-
FRANKLYN MORRISON v. SHINSEKI 7
Finally, I disagree with the majority’s conclusion that
Mr. Morrison’s § 3.343 arguments are procedurally
barred. The majority is incorrect that Mr. Morrison never
presented his § 3.343 argument to the Court of Appeals
for Veterans Claims. The record shows that Mr. Morrison
argued that absent an adequate reason determination,
the VA “was required to follow the rules for reducing a
grant.” Joint App’x 124 (citing 38 C.F.R. § 3.343(a)
(1981)). He further asserted that had the VA correctly
applied the regulation, the VA “ultimately would have
assessed the case under the standard contained in § 3.343
(material improvement based on ‘all the facts of record’
with consideration given ‘to whether the veteran attained
improvement under the ordinary conditions of life’).”
Joint App’x 126. The Court of Appeals for Veterans
Claims recognized as much. Morrison, 2012 U.S. App.
Vet. Claims LEXIS 299, at 16 (“[Mr. Morrison] argues
that the Board instead was required to follow the rule on
reduction of ratings under 38 C.F.R. §§ 3.105, 3.343
(1981).”). Thus, while the majority is correct that Mr.
Morrison did not challenge the Board’s holding that
§ 3.343 does not apply to a veteran who properly has his
disability benefits discontinued, Mr. Morrison did pre-
serve his argument that had his benefits not been im-
properly discontinued under § 3.655, the VA could not
properly have reduced his rating from 100% to 0% (even-
tion. See Joint App’x 51–54. The notices for the May and
July examinations were sent to Newhall, CA after Mr.
Morrison’s address was changed to that location even
though he was still residing in Eureka, CA. Similarly, the
notice for the December examination was sent to Fair-
banks, AK after the VA changed Mr. Morrison’s address
to that location even though Mr. Morrison notified that
VA at least as early as October 13, 1981 that he was
living in Avila Beach, CA. Remand would give the VA an
opportunity to address the inconsistent outcomes between
these otherwise consistent circumstances.
8 FRANKLYN MORRISON v. SHINSEKI
tually 10%) without complying with § 3.343(a). The
majority errs in requiring Mr. Morrison to press a sepa-
rate argument based on § 3.343 when he unquestionably
argued § 3.343 in conjunction with his § 3.655 argument.
The majority concludes that there is no reason to be-
lieve Mr. Morrison’s evaluation would have had a differ-
ent result whether conducted under § 3.343 instead of
§ 3.655. Once § 3.655 was applied, Mr. Morrison was
effectively required to start from scratch, meaning he had
to establish service connection. See 38 U.S.C. § 5107(a).
On the contrary, had Mr. Morrison been able to show that
he had an adequate reason for missing his examination,
his benefits could have been reduced only upon a showing
of material improvement. 38 C.F.R. § 3.343(a) (1981).
The VA’s findings of “no objective evidence of disability”
and “little objective physical findings to substantiate a
diagnosis of post concussion syndrome” do not necessarily
meet the material improvement standard. It remains
that the claimed error could have manifestly changed the
outcome of the case. See 38 C.F.R. § 20.1403(a). From the
majority’s contrary conclusions, I respectfully dissent.