Gerald S. Corwin v. Anthony J. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 02-0578
GERALD S. CORWIN , APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before IVERS, STEINBERG, and KASOLD, Judges.
ORDER
On May 7, 2004, the appellant, through counsel, filed a motion for a panel decision regarding
an April 16, 2004, single-judge order (Corwin v. Principi, No. 02-578, 2004 WL 1302369 (Vet. App.
Apr. 16, 2004)), which affirmed a February 13, 2002, decision of the Board of Veterans' Appeals
(BVA or Board). The Court will grant that motion, withdraw the Court's April 16, 2004, order, and
issue this order in its stead.
The February 2002 Board decision denied entitlement to an effective date prior to February
27, 1995, for a grant of service connection for post-traumatic stress disorder (PTSD). As a
preliminary matter, the Court notes that the appellant has not challenged the Board's decision that
his claim for an earlier effective date for the grant of service connection for heart disease was legally
insufficient. Therefore, that issue is not before the Court and is deemed abandoned. See Burton v.
Principi, 15 Vet.App. 276, 277 (2001) (per curiam order). The Court has jurisdiction pursuant to
38 U.S.C. § 7252(a). For the reasons set forth below, the Court will affirm the Board decision.
The appellant had active duty service in the U.S. Army (Air Corps) from April 1944 to
November 1945. Record (R.) at 19. In December 1984, the appellant filed a claim for service
connection for “combat fatigue.” R. at 41-44. A VA regional office (RO) denied the claim in a
September 1985 decision after finding no record of in-service incurrence or manifestation of
symptoms within the one-year-statutory-presumption-of-service-connection period. R. at 62. A
January 1986 letter from the appellant’s representative requested that the RO conduct a search of its
records for an order from a U.S. Army medical officer that had reassigned the appellant and other
members of his unit back to the United States because of combat fatigue. R. at 66. An RO decision
dated March 1986 noted that no additional medical records were found and again denied the claim
for service connection. R. at 71. The appellant did not pursue an appeal of that decision.
In February 1995, the appellant filed a claim for service connection for "'battle fatigue' and/or
PTSD." R. at 75-76. An April 1995 VA psychiatric examination diagnosed the appellant as having
PTSD. R. at 91. The RO granted service connection for PTSD with a 10% disability rating and
assigned an effective date of February 1995 in a May 1995 decision. R. at 121-24. The appellant
filed a timely Notice of Disagreement (NOD) with respect to the effective date assigned. R. at 128.
In a June 1998 decision, the Board denied an effective date earlier than February 1995 and found no
clear and unmistakable error (CUE) in the September 1985 RO decision. R. at 475-82. This Court,
in a July 1999 decision, affirmed the Board decision. R. at 487.
In his appeal of the February 2002 BVA decision to the Court, the appellant contends that
the BVA erred in not finding that the appellant's January 1986 letter was a valid NOD as to the
September 1985 RO decision and that the RO had failed to issue a Statement of the Case.
Appellant's Brief (Br.) at 9. Consequently, the appellant contends, his December 1984 claim for
service connection remains unadjudicated and he is entitled to an effective date back to that date.
Appellant's Reply Br. at 6-10.
However, the appellant's claim that he is entitled to an earlier effective date for his
service-connected PTSD was previously raised to and rejected by the Board in a June 30, 1998,
decision. R. at 475-82. In that decision, the Board determined that "the [appellant] did not timely
appeal the RO's September 1985 decision that denied service connection for a nervous condition"
and that the September 1985 RO decision was "final and binding." R. at 479-80. The Board then
analyzed the case for CUE, as the only remaining basis for potentially finding an earlier effective
date, and determined that the 1985 decision did not contain CUE. R. at 480-81. Thereafter, this
Court, in a July 28, 1999, single-judge order, after specifically noting that the appellant had argued
to the Court that the 1985 decision "remains open and pending," found that that argument "[wa]s not
supported by the record" and affirmed the 1998 Board decision. R. at 486-87. Hence, the appellant's
claim for an earlier effective date has already been decided by this Court, and his attempts to re-raise
it here are barred under the doctrine of res judicata. See McDowell v. Brown, 5 Vet.App. 401, 405
(1993).
This Court has recently addressed a nearly identical attempt to re-raise an earlier-effective-
date claim. Bissonnette v. Principi, 18 Vet.App. 105 (2004). There, as here, the appellant was
attempting to raise a new argument on the previously-addressed claim. 18 Vet.App. at 111. The
Court's conclusion in Bissonnette applies with equal force to the appellant's argument in this case
that the 1985 RO decision remains open because he had filed an NOD: "The latter argument should
have been raised in the prior litigation, and the Court, having heard and decided the claim, cannot
reopen its doors to hear an argument that could have been raised the first time." 18 Vet.App. at 112.
The appellant had an opportunity to raise the NOD issue in his previous appeal as part of his effort
to secure an earlier effective date and, having failed to do so, is precluded from arguing it now.
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Upon consideration of the foregoing, it is
ORDERED that the May 7, 2004, motion for a panel decision is granted. It is further
ORDERED that the April 16, 2004, order is withdrawn. It is further
ORDERED that the February 13, 2002, BVA decision is AFFIRMED.
DATED: August 25, 2004 PER CURIAM.
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