Hartman v. Nicholson

United States Court of Appeals for the Federal Circuit

2006-7303

MARCELLUS S. HARTMAN,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

Susan Paczak, Abes Baumann, P.C., of Pittsburgh, Pennsylvania, argued for

claimant-appellant.

Martin F. Hockey, Jr., Senior Trial Counsel, Commercial Litigation Branch, Civil

Division, United States Department of Justice, of Washington, DC, argued for the

respondent-appellee. With him on the brief were, Peter D. Keisler, Assistant Attorney

General, and David M. Cohen, Director. Of counsel on the brief were David J. Barrans,

Assistant General Counsel, and Martie Adelman, Staff Attorney, United States

Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge William P. Greene, Jr.

United States Court of Appeals for the Federal Circuit

2006-7303

MARCELLUS S. HARTMAN,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

__________________________

DECIDED: April 5, 2007

__________________________

Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MOORE,

Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

Section 5103(a) of Title 38 of the United States Code requires the Secretary of

Veterans Affairs “[u]pon receipt of a complete or substantially complete application” for

benefits to “notify the claimant of any information and any medical or lay evidence . . .

necessary to substantiate the claim.” The principal question in this appeal is whether

this notice requirement applies when a veteran files an appeal to the Board of Veterans

Appeals (“Board”) from an initial decision of the Department of Veterans Affairs

(“Department”) regional office denying the veteran an earlier date for the

commencement of disability benefits. The Court of Appeals for Veterans Claims

(“Veterans Court”) held that the Secretary’s notice obligation does not extend to that

situation. We affirm.

I

The appellant, Marcellus S. Hartman, served in the Army from 1969 to 1972,

including a year in Vietnam. In 1986 he wrote to the Department’s regional office that

because of his post-traumatic stress disorder (“PTSD”), his time for utilizing his

veteran’s educational benefits should be extended.

The regional office, viewing Hartman’s letters as an informal claim for service

connection for PTSD, asked Hartman to describe the in-service events that led to his

PTSD and to submit medical reports from doctors who had treated him following his

discharge. It also listed an appointment made for him for a medical examination at a

Department facility. After Hartman notified the office that he would not keep the

scheduled appointment, the office told him that if he failed to attend the examination or

to provide the requested information, his claim might be rejected. Hartman did not

attend the scheduled examination, and in December 1986, the office notified him that

for that reason, no action would be taken on his claim.

In April 1999, more than 12 years later, Hartman submitted a benefits claim

based on PTSD. In July 1999, Hartman was awarded service connection for PTSD with

a 70 percent disability rating effective April 15, 1999. Then, in February 2000, Hartman

was awarded a 100 percent disability rating based upon individual unemployability, also

effective April 15, 1999.

In February 2001, Hartman filed a notice of disagreement, which is the procedure

for appealing a regional office decision to the Board. He asserted that the effective date

for his benefits should be the date of his discharge. That action led to a series of

decisions by the Board, the Veterans Court, and this court. The culmination of those

2006-7303 2

decisions was the Veterans Court’s opinion in Dingess v. Nicholson, 19 Vet. App. 473

(2006), in which the court decided two separate veterans’ appeals in a single opinion.

The court affirmed the Board’s denial of Hartman’s claim for an effective date

earlier than April 15, 1999. Id. at 501. The court held that the Board had not committed

prejudicial error in ruling that the Department was not required to provide Hartman with

notice under 38 U.S.C. § 5103(a) when he filed his notice of disagreement challenging

the regional office’s refusal to provide an earlier effective date for his benefits. Id. at

500. The court explained that

Within the VA adjudicatory scheme, section 5103(a) is focused on

notice that is required to be provided to a claimant upon receipt of a

complete or substantially complete application for benefits and prior to an

initial adjudication . . . the statutory scheme contemplates that once a

decision awarding service connection, a disability rating, and an effective

date has been made, section 5103(a) notice has served its purpose, and

its application is no longer required because the claim has already been

substantiated.

Id. at 490 (citation ommitted).

II

Hartman’s principal contention is that when he filed his notice of disagreement

with the regional office’s denial of an earlier date for commencement of his benefits, §

5103(a) required the Secretary to give him the notice specified by that provision. That

section states:

Upon receipt of a complete or substantially complete application, the

Secretary shall notify the claimant and the claimant’s representative, if

any, of any information, and any medical or lay evidence, not previously

provided to the Secretary that is necessary to substantiate the claim.

Under this provision the Secretary’s duty to give notice to the claimant is

triggered by the Secretary’s “receipt of a complete or substantially complete

2006-7303 3

application.” As this court has noted, “[t]he purpose of [§ 5103] and the corresponding

regulation [(38 C.F.R. § 3.159(b)(2))] is to require that the VA provide affirmative

notification to the claimant prior to the initial decision in the case as to the evidence that

is needed and who shall be responsible for providing it.” Mayfield v. Nicholson, 444

F.3d 1328, 1333 (Fed. Cir. 2006) (citations omitted). The legislative history of § 5103

also supports this conclusion. See, e.g., S. Rep. No. 106-397, at 22 (2000) (“The

Committee bill, in summary, modifies the pertinent statutes to reinstate VA’s traditional

practice of assisting veterans at the beginning of the claim process.”) (from the

Committee of Veterans’ Affairs report on what would become the Veterans Claim

Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096).

The filing of a notice of disagreement takes place after, not prior to, the regional

office’s initial decision. The regional office could reject the request for an earlier

benefits date only after it had received a “complete or substantially complete [benefits]

application.” The notice of disagreement is not a part of that application, but is the

claimant’s notification to the Department that he is challenging the regional office’s

decision on that application by appealing it to the Board of Veterans Appeals.

Hartman relies on a Department regulation, 38 C.F.R. § 3.1(p), which states that

a

Claim—Application means a formal or informal communication in writing

requesting a determination of entitlement or evidencing a belief in

entitlement, to a benefit.

Hartman argues that under this provision an “application” constitutes a claim, and that

since his notice of disagreement requested “a determination of entitlement . . . to a

2006-7303 4

benefit,” i.e., an earlier commencement date for his payments, it constituted a “claim” for

benefits that triggered the Secretary’s notification obligation under § 5103(a).

This regulation, however, merely defines what constitutes an “application” for a

claim, and does not make the terms identical. It makes clear that there are no specific

requirements that a claim—application must satisfy, and that any “formal or informal”

written “communication . . . requesting” benefits is sufficient. It cannot properly be read

as converting a notice of disagreement into an application for benefits for the purpose of

§ 5103(a).

III

Alternatively, Hartman relies on a Department regulation, 38 C.F.R. § 3.155(a),

which states that “upon receipt of an informal claim, if a formal claim has not been filed,

an application form will be forwarded to the claimant for execution.” He argues that

because the Department did not send him a formal claim application after it treated his

1986 letters as an informal claim for PTSD benefits, that claim remained outstanding

and has not been adjudicated, and he therefore is entitled to an earlier effective date for

PTSD benefits.

Hartman primarily contends that the Veterans Court failed to consider this

argument because it did not explicitly address it. “That the court did not specifically

mention the [argument] in its opinion forms no basis for an assumption that it did not

consider [it] . . . . That a court ‘do[es] not discuss certain propositions do[es] not make

the decision inadequate or suggest the . . . court failed to understand them.’” Perkin-

Elmer Corp. v. Computervision Corp., 73 F.2d 888, 901 (Fed. Cir. 1984) (quoting

Schilling v. Schwitzer-Cummins Co., 142 F.2d 82, 84 (D.C. Cir. 1944)). The court may

2006-7303 5

have merely concluded, for various reasons, that discussion of the issue was neither

necessary nor appropriate.

A “‘litigant’s right to have all issues fully considered and ruled on by the appellate

court does not equate to a right to a full written opinion on every issue raised.’”

Bernklau v. Principi, 291 F.3d 795, 801 (Fed. Cir. 2002) (quoting United States v.

Garza, 165 F.3d 312, 314 (5th Cir. 1999)). Here, the Veterans Court stated that “Mr.

Hartman has not demonstrated that the Board committed prejudicial error in its findings

of fact, conclusions of law, compliance with procedural requirements, articulation of

reasons or bases, or application of the equipoise standard that would warrant reversal

or remand.” Dingess, 19 Vet. App. at 501. “While it may be desirable in some cases to

afford each issue a complete written discussion, no statute or rule compels such an

approach by the Court of Appeals for Veterans Claims (or indeed any other court).”

Bernklau, 291 F.3d at 801 (citation ommitted). Hartman’s contention that the Veterans

Court did not properly consider his argument fails.

Hartman’s argument fares no better on its merits. Section 3.155(a) appears to

be merely a housekeeping provision, designed to guide Departmental personnel in their

processing of benefit claims. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 310

(1979) (describing a housekeping statute as one which authorizes an agency to develop

“‘rules of agency organization, procedure or practice’”). It cannot properly be viewed as

creating any substantive right for claimants to receive a formal claim application. See,

e.g., Schism v. United States, 316 F.3d 1259, 1281 (Fed. Cir. 2002) (“But a

housekeeping statute that authorizes rules of agency organization, procedure or

2006-7303 6

practice and not substantive rules cannot confer a right to, or otherwise authorize the

promise of a right or entitlement to, free lifetime medical care.”).

Moreover, Hartman makes no claim or attempt to show that he was prejudiced by

the Department’s failure to supply him with a formal claim application in 1986. He does

not contend, for example, that if he had received a formal application, he would have

submitted additional information supporting his claim. Indeed, it is difficult to see how

he could have claimed prejudice, since his 1986 informal benefits claim was rejected

not on its merits but because he failed to keep an appointment for a Department

medical examination.

CONCLUSION

The portion of the judgment of the Veterans Court that affirmed the Board’s

denial of Hartman’s request for an earlier effective date for post-traumatic stress

disorder benefits is

AFFIRMED.

2006-7303 7