Jones v. Shinseki

United States Court of Appeals

for the Federal Circuit

__________________________

CLABON JONES,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellee.

__________________________

2009-7128

__________________________

Appeal from the United States Court of Appeals for

Veterans Claims in 06-2036, Judge Robert N. Davis.

__________________________

Decided: September 14, 2010

__________________________

KENNETH M. CARPENTER, Carpenter, Chartered, of

Topeka, Kansas argued for claimant-appellant.

SCOTT D. AUSTIN, Senior Trial Attorney, Commercial

Litigation Branch, Civil Division, United States Depart-

ment of Justice, of Washington, DC, argued for respon-

dent-appellee. With him on the brief were TONY WEST,

Assistant Attorney General, JEANNE E. DAVIDSON, Direc-

tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of

counsel on the brief were DAVID J. BARRANS, Deputy

JONES v. DVA 2

Assistant General Counsel, and JAMIE L. MUELLER, At-

torney, Office of the General Counsel, United States

Department of Veterans Affairs, of Washington, DC.

__________________________

Before RADER, Chief Judge, NEWMAN, and PLAGER, Circuit

Judges.

PLAGER , Circuit Judge.

This is a veterans benefits case. Since 1997, Clabon

Jones has been receiving benefits for a service-connected

post-traumatic stress disorder (“PTSD”), with a 100%

disability rating. Prior to that, he had been awarded

service-connected benefits for PTSD rated at 50% dis-

abling with a 1989 effective date. Mr. Jones asserts that

he is entitled to an earlier effective date for PTSD based

on a claim filed in 1973, which he alleges was still pend-

ing when his claim was later reopened.

The Board of Veterans’ Appeals (“Board”) denied Mr.

Jones’s claim for an earlier effective date; the Court of

Appeals for Veterans Claims (“Veterans Court”) affirmed.

The Veterans Court acknowledged that the 1973 claim

remained pending for several years because the Depart-

ment of Veterans Affairs (“VA”) failed to respond when

Mr. Jones appealed the decision by the regional office

(“RO”) denying that claim. However, the Veterans Court

held that the 1973 claim was effectively resolved by a

1986 Board decision denying service connection for PTSD,

and thus the 1973 claim was no longer pending in 1989

when Mr. Jones requested that the VA reopen his claim.

We agree with the Veterans Court and therefore affirm

the judgment denying an earlier effective date.

3 JONES v. DVA

BACKGROUND

Mr. Jones served on active duty in the United States

Army from August 1969 to March 1971. In September

1973, Mr. Jones filed a claim for a service-connected

illness for “nerves.” The Houston RO denied his claim in

February 1974. Mr. Jones filed a March 1974 statement

in support of his claim and requested that the RO con-

sider the statement to be a “notice of disagreement”

(“NOD”) and “a claim for re-evaluation for my nervous

condition.” Between April 1974 and January 1977, the

RO issued a series of deferred and confirmed ratings

decisions, eventually denying service connection for a

nervous condition. The RO, however, never issued the

statutorily-required Statement of the Case (“SOC”) in

response to Mr. Jones’s March 1974 statement, denomi-

nated by him as an “NOD.” See 35 U.S.C. § 7105(d)(1).

In July 1983, Mr. Jones requested that his claim be

reopened specifically for PTSD. The RO reopened his

claim but denied service connection for PTSD. Mr. Jones

did not appeal that decision.

Mr. Jones again requested that his claim be reopened,

and the RO in June 1985 again denied service connection

for PTSD. In November 1985, after receiving VA hospital

records, the RO continued the previous denial of service

connection for a nervous condition.

Mr. Jones appealed the June 1985 and November

1985 RO decisions to the Board. In November 1986, the

Board denied service connection for a nervous condition,

including PTSD. The Board stated in its decision that

new and material evidence had not been added to the

record since the RO’s denial of Mr. Jones’s claim in 1977.

Nevertheless, the Board reviewed all the evidence of

JONES v. DVA 4

record, including service medical records, and considered

Mr. Jones’s claim on the merits.

In January 1987, Mr. Jones again requested that his

claim for a nervous condition be reopened. The RO denied

service connection, and Mr. Jones appealed to the Board.

In February 1988, the Board again found that service

connection for a nervous disorder, including PTSD, was

not established.

Mr. Jones requested that his claim be reopened again

in May 1989. The RO denied his PTSD claim in Novem-

ber 1989 and, after receiving correspondence from Mr.

Jones’s personal physician, confirmed the denial in a

January 1990 decision. Mr. Jones filed an appeal with

the Board.

In February 1991, a VA medical examiner diagnosed

Mr. Jones with PTSD. The Board subsequently remanded

his PTSD claim to the RO for further development. The

RO continued to deny the claim, but in October 1995 the

Board reversed and awarded service connection for PTSD.

The RO then evaluated Mr. Jones’s PTSD as 50% dis-

abling with an effective date of May 1989, the date of Mr.

Jones’s request to reopen his claim. The RO later

awarded Mr. Jones an increased rating of 100% effective

March 1997, the date of a comprehensive VA medical

examination to determine the full extent of his PTSD.

Mr. Jones disagreed with the May 1989 effective date

and appealed to the Board. In July 1998, the Board

denied an effective date earlier than May 1989 for PTSD.

Mr. Jones appealed to the Veterans Court, which granted

a joint motion to vacate the Board’s decision and remand

for further consideration of entitlement to an earlier

effective date for service connection for PTSD. After

5 JONES v. DVA

various appeals and remands for reconsideration of Mr.

Jones’s claim in view of, among other things, the Veterans

Claims Assistance Act of 2000, Pub. L. No. 106-475, 114

Stat. 2096, the Board in March 2006 again denied an

effective date for PTSD earlier than May 1989.

One of Mr. Jones’s arguments was that he was enti-

tled to an earlier effective date because the RO’s February

1974 decision denying his original September 1973 claim

was not final. He argued specifically that the September

1973 claim remained open because the RO failed to pro-

vide an SOC in response to Mr. Jones’s March 1974

statement, which should have been construed as an NOD.

The Board acknowledged the argument, but concluded

that the February 1974 RO decision was rendered final

when it was subsumed by the 1986 Board decision, which

“addressed all the evidence of record at the time, and

made, essentially, a merits determination.” In re Jones,

No. 96-51 818, slip op. at 14 (Bd. Vet. App. Mar. 16, 2006)

(“2006 Board Decision”).

Mr. Jones appealed to the Veterans Court. That court

initially affirmed the March 2006 Board decision in a

single-judge decision. That decision was later withdrawn

when the court assigned the case to a three-judge panel

specifically to consider whether Mr. Jones’s 1973 claim

was resolved by the 1986 Board decision. The panel

issued a new decision in June 2009, affirming the March

2006 Board decision that denied an effective date earlier

than May 1989. Jones v. Shinseki, 23 Vet. App. 122

(2009).

In its opinion the court cited Williams v. Peake, 521

F.3d 1348, 1350 (Fed. Cir. 2008), for the proposition that

later adjudication of a claim having substantially the

same substance as a pending claim resolves the pending

JONES v. DVA 6

claim. Mr. Jones argued that his case was distinguish-

able from Williams and similar Veterans Court cases

because his original claim was pending in appellate

status, not, as was the case in Williams, before the RO.

The Veterans Court, though acknowledging the differ-

ence, extended the holding of Williams to Mr. Jones’s

case.

Thus, according to the Veterans Court, while a later

RO decision could not resolve Mr. Jones’s original claim

that had been placed in appellate status by virtue of the

1974 NOD, an appellate adjudication of a subsequent

claim for the same or similar disability could resolve the

earlier claim. Because the 1986 Board decision denied

service connection for a nervous condition including

PTSD, it terminated Mr. Jones’s original 1973 claim for

nerves. Accordingly, the Veterans Court concluded that

Mr. Jones was not entitled to an effective date prior to

May 1989, the date of the request to reopen his claim that

ultimately resulted in an award of service connection

benefits.

Mr. Jones appeals the question of law. We have ju-

risdiction pursuant to 38 U.S.C. § 7292.

DISCUSSION

As a general proposition, the law regarding the effec-

tive date of an award of service connection benefits is

well-understood. The effective date of an award of bene-

fits based on an original claim cannot be earlier than the

date that the VA received the claim. See 38 U.S.C.

§ 5110(a); Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir.

2009). For an award based on a claim reopened after a

final adjudication, the effective date is typically the date

that the request to reopen was filed. See 38 U.S.C.

7 JONES v. DVA

§ 5110(a); Adams, 568 F.3d at 960. A claim for benefits

remains pending until it is finally adjudicated. 38 C.F.R.

§ 3.160(c); Adams, 568 F.3d at 960. If a claim is left

pending without a final adjudication, the claim may be

addressed when a subsequent claim is adjudicated by the

VA, in which case the effective date for any resulting

award of benefits will be the effective date applicable to

the earlier claim. Adams, 568 F.3d at 960 (citing Myers v.

Principi, 16 Vet. App. 228, 236 (2002)).

In this case, Mr. Jones received an award of service-

connected benefits for PTSD with an effective date of May

1989, the date of his last request to reopen his claim. Mr.

Jones alleges that he is entitled instead to an effective

date of September 1973, the date of his original claim.

His theory is that the original claim was still pending

when the Board awarded benefits based on his 1989

request to reopen his claim. He disagrees with the con-

clusion reached by the Veterans Court that the 1986

Board decision was a final adjudication of the 1973 claim.

According to Mr. Jones, the applicable legal rule is

that established by the Veterans Court in Myers v. Prin-

cipi, 16 Vet. App. 228 (2002). In that case, the RO denied

the veteran’s claim for service connection in 1958. Id. at

229. The veteran thereafter submitted a document that

the VA failed to recognize and properly treat as an NOD.

Id. Decades later, the veteran attempted to reopen his

claim, and the Board eventually granted him service

connection benefits effective as of the date that he re-

quested reopening of his claim. Id. at 230.

Upon review of the Board’s decision, the Veterans

Court in Myers held that the 1958 RO decision never

became final because the VA failed to provide the veteran

with an SOC after his claim was placed in appellate

JONES v. DVA 8

status by the NOD. Id. at 235. As a result, the original

1958 claim was “part of the current claim stream,” and

the Board decision awarding benefits was a final resolu-

tion of the appeal from the original claim. Id. at 236. In

other words, the original claim remained in appellate

status until it was resolved by the Board’s decision on the

reopened claim granting benefits, the effective date of

which should then have related back to the original claim.

We agree with Mr. Jones that Myers states a rule ap-

plicable to his case, but we also agree with the Govern-

ment that, contrary to Mr. Jones’s position, the Veterans

Court decision in this case is not inconsistent with Myers.

Neither party disputes that, as in Myers, Mr. Jones’s

original 1973 claim was left pending in appellate status

when the VA failed to file an SOC in response to the 1974

NOD. But Mr. Jones appears to argue that, under Myers,

a claim pending in appellate status can only be resolved

by a later Board decision that grants service connection

after the claim is reopened, and not by a Board decision

that denies service connection. In our view that is a

distinction without a difference. A decision by the Board

denying benefits is as much a final adjudication of a claim

as a decision by the Board granting benefits. Therefore, a

claim pending in appellate status may be resolved by a

final Board decision that addresses the merits of the

pending claim, whether it results in a grant or denial of

benefits.

This conclusion is consistent with the line of authority

relied on by the Veterans Court in this case, including

Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009), and

Williams v. Peake, 521 F.3d 1348 (Fed. Cir. 2008). These

cases establish that under appropriate circumstances, a

pending claim for benefits can be resolved by later adjudi-

cation of an identical claim or a related claim because the

9 JONES v. DVA

later decision provides sufficient notice to the claimant

that the pending claim has been finally resolved. One

such circumstance is illustrated by our decision in Adams.

The veteran in that case filed two claims closely associ-

ated in substance and time, but the VA denied only one of

the claims explicitly. Adams, 568 F.3d at 963-64. Under

the “implicit denial rule,” the second claim was also

deemed denied because the VA’s decision gave the veteran

reasonable notice that related claims were being denied.

Id.; see also Munro v. Shinseki, 2010 WL 3064301, at *3-5

(Fed. Cir. Aug. 6, 2010) (discussing “implicit denial”

cases); Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed.

Cir. 2006) (holding that decision granting service connec-

tion for head trauma implicitly denied simultaneous claim

for psychiatric condition).

In Williams, we applied a variation of the rule to hold

that “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.” 521 F.3d at 1351. In that case, the veteran did

not receive notice that the RO had denied his initial claim

for a nervous condition. Id. at 1349. In a subsequent

final decision, the RO denied on the merits a second claim

for the same disability. Id. When the VA granted service

connection many years later based on a reopened claim,

the veteran alleged that he was entitled to an earlier

effective date relating back to his initial claim, which he

argued had not been finally adjudicated. Id. We affirmed

the Veterans Court’s determination that the initial claim

did not remain pending because the RO’s denial of the

second claim terminated the pending status of any identi-

cal pending claims. Id. at 1351.

The case before us is quite similar to Williams, but

with the one difference noted by the Veterans Court.

JONES v. DVA 10

Williams involved a claim that was left pending before the

RO and was later resolved by the RO’s denial of an identi-

cal claim. Here Mr. Jones’s initial claim was left pending

because the VA failed to issue an SOC; the legal question

presented is whether a subsequent Board decision deny-

ing an identical claim serves as a final adjudication of a

claim pending in appellate status.

Mr. Jones argues that the Veterans Court erred in

applying Williams in the appellate context. We disagree.

The key question is whether sufficient notice has been

provided so that a veteran would know, or reasonably can

be expected to understand, that he will not be awarded

benefits for the disability asserted in his pending claim,

and thus can decide for himself whether to accept the

decision or seek redress elsewhere. See Adams, 568 F.3d

at 965 (“[T]he implicit denial rule is, at bottom, a notice

provision.”); Williams, 521 F.3d at 1351 (“The notice given

that the later claim has been disallowed informs the

veteran that his claim for service connection has failed.”).

If a veteran has a claim pending in appellate status, a

decision by the Board denying a subsequent identical

claim effectively informs him that the earlier claim also

has been disallowed by the Board on appeal. This is a

logical extension of Williams because the veteran receives

sufficient notice regarding the appellate disposition of his

pending claim.

Mr. Jones further argues that the Veterans Court

erred in finding that the 1986 Board decision actually

resolved the 1973 claim. Though Mr. Jones now concedes

that the 1986 Board decision denying service connection

for a nervous condition including PTSD involved the same

disability as his 1973 claim for “nerves,” he asserts that

the 1986 decision did not consider the merits of the 1973

claim. Instead, he contends that the Board in 1986 only

11 JONES v. DVA

determined that there had been no new and material

evidence added to the record since 1977 to warrant re-

opening his claim.

Whether the 1986 Board decision addressed the mer-

its of Mr. Jones’s original 1973 claim would seem to be a

factual issue that lies beyond the scope of our review. See

38 U.S.C. § 7292(d)(2). Nevertheless, we note that the

Board in 2006 explicitly found that “the 1986 Board

decision addressed all the evidence of record at the time,

and made, essentially, a merits determination.” 2006

Board Decision, slip op. at 14. Furthermore, the record

supports this finding. The Board’s 1986 decision detailed

all the evidence of record, including Mr. Jones’s service

medical records and other medical records from 1973 that

predated his original claim. While the Board also stated

that evidence received since 1977 had not added anything

new or material to the record, the Board in 1986 clearly

reviewed the entire record and addressed the merits of

Mr. Jones’s claim for a nervous condition. As the Veter-

ans Court found, “the Board’s 1986 decision was sufficient

to put Mr. Jones on notice that his 1973 claim for VA

benefits for ‘nerves’—which until that time had remained

pending by virtue of its appellate status—was being

denied.” Jones, 23 Vet. App. at 125.

For the foregoing reasons, we hold that the Veterans

Court correctly determined that Mr. Jones’s 1973 claim

was resolved by the 1986 Board decision. We therefore

affirm the judgment of the Veterans Court denying an

effective date earlier than 1989.

AFFIRMED

JONES v. DVA 12

COSTS

Each party shall bear its own costs.