Tetro v. West

This version includes an errata issued 18Apr00 -e

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 97-1192

FRANK L. TETRO , III, APPELLANT ,

V.

TOGO D. WEST , JR.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided April 4, 2000 )

Ruth Tetro (non-attorney representative), of Chinook, WA, was on the pleadings for the

appellant.

Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Michael A.

Leonard, Deputy Assistant General Counsel; and Adam K. Llewellyn, of Washington, DC, were on

the pleadings for the appellee.

Before KRAMER, IVERS, and GREENE, Judges.

KRAMER, Judge: The appellant, Frank L. Tetro, III, appeals a March 26, 1997, decision

of the Board of Veterans' Appeals (BVA or Board) denying an effective date earlier than February

23, 1989, for an award of service connection for post-traumatic stress disorder (PTSD), granting

special monthly pension based on the need for regular aid and attendance, and granting an effective

date of April 26, 1991, for non-service-connected total and permanent disability pension. Record

(R.) at 6-13. The appellant has filed a brief, the Secretary has filed a motion for summary affirmance

in lieu of a brief, and the appellant has filed a motion in opposition to the Secretary's motion and a

request for summary judgment, which the Court treats as a reply brief. This appeal is timely, and

the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).

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As a preliminary matter, the Court notes that by order dated April 17, 1998, the Court advised

the appellant that the record on appeal (ROA) may not include materials not relevant to the issues

on appeal. By order dated June 4, 1998, the Court advised the appellant that the Court is precluded

from considering on appeal any material that was not in the record before the Board when it rendered

its March 26, 1997, decision, and that documents that postdate the Board decision cannot be included

in the ROA. By order dated July 7, 1998, the Court cautioned the appellant against attempting to

supplement the ROA with documents not relevant to the issues of the effective date of his permanent

and total disability for pension purposes and the effective date of his grant of service connection for

PTSD. The appellant has supplemented both his brief and his reply brief with clippings, news

articles, and other extraneous materials. The Secretary has moved to strike these documents.

Accordingly, none of those extraneous material attached to the appellant's filings will be considered.

The appellant argues as follows: (1) that the Federal Government failed to provide

documentation of his exposure to Agent Orange and biological and chemical warfare agents

(Argument 1); (2) that VA failed to consider as a PTSD stressor his survival of a shipboard fire

during service (Argument 2); (3) that a 1999 Board decision awarding a 100% disability rating for

a service-connected closed head injury assigned an incorrect effective date (Argument 3); (4) that

he is entitled to retroactive pension benefits pursuant to 38 C.F.R. § 3.151(b) (1999) (Argument 4);

(5) that a 1990 Board decision denying entitlement to non-service-connected pension, a 1994 rating

decision, and the 1997 Board decision that is the subject of this appeal contained clear and

unmistakable error (CUE) (Argument 5); and (6) that the Board in 1990 failed in its duty to assist

the appellant by failing to obtain Social Security Administration (SSA) records pertaining to a 1989

award of disability (Argument 6). In response, the Secretary argues merely that there was a plausible

basis in the record for the effective date for the appellant's non-service-connected pension award as

determined by the Board. For the following reasons, the Court rejects Arguments 1, 2, 3, 4, and 5,

but agrees with Argument 6 and, with respect to it, will remand a matter.

I. BACKGROUND

Only those facts in the record that are relevant to this decision are set forth here. The

appellant initially served on active duty in the U.S. Navy from September 1964 through August

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1968. R. at 19. In November 1983, the appellant fell from a walkway in a work-related accident,

landing on his head. R. at 26, 778-81. He filed a claim for non-service-connected total and

permanent disability pension benefits on December 28, 1984. R. at 20-21. That claim was denied

in an unappealed rating decision in March 1985, on the basis that he was not precluded from

substantially gainful employment by reason of total and permanent disability. R. 29. A reopened

claim was denied on the same basis in August 1987, R. at 37, and, in a March 1988 decision, the

Board remanded the matter to a VA regional office (RO) in order to obtain additional medical

evidence. R. at 619, 668. In September 1989, while the appellant's claim was on Board remand to

the RO, R. at 45, 427, the appellant delivered to VA a February 22, 1989, Social Security

Administration (SSA) decision that (1) documented a July 1985 SSA decision granting him a closed

period of total disability benefits from November 1, 1983, through May 17, 1985, and (2) determined

that he was totally disabled and was entitled to Social Security disability benefits, commencing May

17, 1985 (the end of the previously closed period of disability). R. at 432-33. In a March 1990

decision, the Board denied the appellant's pension claim on the basis that his disabilities, while

limiting his ability to engage in some forms of employment, did not preclude substantially gainful

employment. R. at 45. The Board had not obtained the appellant's SSA records at that time.

R. at 168, 170. In its discussion, however, the Board mentioned the SSA decision, and stated: "We

recognize that the veteran has been found entitled to disability benefits from the [SSA], but we are

not persuaded that he is permanently and totally disabled within the meaning of [38 U.S.C. 1501,

1521(a) (then sections 501 and 521) and the regulations thereunder]." R. at 45-46.

A motion for Board reconsideration filed in April 1990 was denied in February 1991.

R at 60. No appeal was filed to the Court. A VA Form 1-9 (Appeal to the Board of Veterans'

Appeals), to which was attached a statement requesting reopening of the non-service-connected

pension claim, was received by VA on April 26, 1991. R. at 76. VA received a formal application

to reopen the appellant's non-service-connected pension claim in June 1991. R. at 113. An October

1994 RO decision deferred consideration of the claim until the appellant's SSA medical records were

received. R. at 168, 170, 185. VA received the SSA records sometime between October and

December 1994. R. at 184; Appellant's Brief (Br.) at 13. Subsequently, by an RO decision dated

December 21, 1994, the appellant was granted an extraschedular rating of total and permanent

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disability and granted non-service-connected pension. R at 184. The RO assigned an effective date

of June 1991 for the pension award. R. at 9. In making its decision, the RO relied in part on the

appellant's newly obtained Social Security medical records. The RO stated:

[N]umerous evaluations and medical reports since the [appellant's 1983 closed head

injury] provided by the [SSA] show veteran suffering from impairments which

restrict his capacity to perform basic work activities . . . . Considering the nature of

veteran's disability and other factors, such as, the veteran's age, education, limited

work skills and occupational background including his long and well-established

unemployability and Social Security disability being his only source of income,

entitlement to pension is conceded.

R. at 184.

The appellant filed, in September 1995, a Notice of Disagreement (NOD) stating that he

"disagree[d] with your effective date of claim for . . . NSC pension . . . ." R. at 736. In the 1997

decision here on appeal, the Board determined that a statement on the April 1991 VA 9 form filed

by the appellant was an informal claim pursuant to 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(r)

(1996), and that he was, accordingly, entitled to an April 1991 effective date for the award of non-

service-connected pension benefits. R. at 8-10. The Board found that the appellant presented no

legal basis to "negate and ignore the March 1990 final Board decision" and move the effective date

back to the date of his original (December 1984) claim or the date of his November 1983 injury.

R. at 10.

II. ANALYSIS

A. Arguments 1 and 2: Exposure to Agent Orange and Other Toxins, and PTSD Stressors

The Board remanded to the RO for further development the question of the appellant's

exposure to Agent Orange and other toxic chemical and biological substances while serving on board

the U.S.S. Granville S. Hall, and the question of what stressors the appellant experienced during

service with respect to his PTSD. R. at 14. This Court's jurisdiction to review Board decisions is

limited by statute to review of those Board decisions that are final. See 38 U.S.C. §§ 7252(a),

7266(a); Mayer v. Brown, 37 F.3d 618, 619 (Fed. Cir. 1994). Claims that have been remanded to

the RO by the Board are not ripe for review by this Court. See Link v. West, 12 Vet.App. 39, 47

(1998); Marlow v. West, 11 Vet.App. 53, 55 (1999); see also 38 C.F.R. § 20.1100 (1999) (Board

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remand not a final decision of the Board). These issues, including the question whether 38 C.F.R.

§ 3.151(a) (1999) applies to treat the appellant's 1984 pension claim as a claim for compensation

pertaining to the remanded matters, cannot be considered by the Court until such time as the Board

has rendered a final determination on them. See Green v. West, 11 Vet.App. 472, 476 (1998); Talon

v. Derwinski, 3 Vet.App. 74 (1992).

B. Argument 3: Error in 1999 Board Decision

The Court has no jurisdiction over the appellant's allegations of error in a 1999 decision of

the Board granting total disability due to a service-connected closed head injury. The notice of

appeal (NOA) here is limited to the 1997 Board decision; there has been no NOA filed with respect

to the 1999 decision. See 38 U.S.C. § 7266(a) (Court has jurisdiction to review only Board decisions

that are final, and only where an NOA is timely filed); see also Prenzler v. Derwinski, 928 F.2d 392,

393-94 (Fed. Cir. 1991) (Court's appellate jurisdiction derives exclusively from statutory grant of

authority provided by Congress and may not be extended beyond that permitted by law); Skinner

v. Derwinski, 1 Vet.App. 2, 3 (1990).

C. Argument 4: Retroactive Non-Service-Connected Pension Benefits

The appellant asserts that he is entitled to retroactive pension benefits for total disability

pursuant to 38 C.F.R. § 3.151 (b) (1999), on the basis that he filed a claim for retroactive benefits

within one year of application for pension benefits. A grant of entitlement to retroactive pension

benefits is an exception to the rule that the effective date of an award for a grant of a pension is the

date of facts shown or date of claim, whichever is later. See 38 U.S.C. § 5110(a) ("Unless

specifically provided otherwise in this chapter, the effective date of an award based on an original

claim, a claim reopened after adjudication, or a claim for an increase, of compensation, dependency

and indemnity compensation, or pension shall be fixed in accordance with the facts found, but shall

not be earlier than the date of receipt of application therefor."); see also 38 C.F.R. § 3.400 (1999)

("Except as otherwise provided, the effective date of . . .an award of pension . . .will be the date of

receipt of the claim or the date entitlement arose, whichever is the later"). A claimant may not

receive an award of retroactive benefits with an effective date prior to the earlier of one year before

the date of the claimant's application for benefits or one year before the date of administrative

determination of the entitlement. See 38 U.S.C. § 5110(g) ("In no event shall such award or increase

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be retroactive for more than one year from the date of application therefore or the date of

administrative determination of entitlement, whichever is earlier."); McCay v. Brown, 9 Vet.App.

183, 188 (1996) ("section 5110(g) was clearly intended to limit maximum amount of recoverable

retroactive benefits to one year prior to the filing of an application" (citing Viglas v. Brown,

7 Vet.App. 1, 3 (1994))).

A pension award may be effective earlier than the date of receipt of the claim resulting in an

award only if: (1) the veteran specifically claims entitlement to retroactive benefits separately or

together with the claim for disability pension, and the claim for retroactive benefits is received by

VA "within one year from the date on which the veteran became permanently and totally disabled,"

38 C.F.R. §§ 3.151(b) (1999) (element 1); see Wilson v. Brown, 5 Vet.App. 103, 108 (1993); Smith

v. Derwinski, 2 Vet.App. 429, 431 (1992); (2) for claims received on or after October 1, 1984, the

disability is not the result of the veteran's own willful misconduct (element 2); and (3) the disability

is "so incapacitating that it prevented him or her from filing a disability pension claim for at least the

first 30 days immediately following the date on which the veteran became permanently and totally

disabled," 38 C.F.R. § 3.400(b)(1)(ii)(B) (1999) (element 3); see Wilson, supra. The record does not

support a conclusion that the willful misconduct element is at issue. However, the appellant has not

fulfilled the requirements of either element 1 or element 3.

As to element 1, the appellant filed his first claim for pension in December 1984, and filed

applications to reopen through 1991, the last of which resulted in an award by the Board with an

effective date of April 1991. The earliest mention of the appellant's desire for retroactive pension

benefits is a statement in his appeal of the 1994 RO decision, received by VA on July 3, 1995. See

R. at 337. The appellant asserts, in effect, Brief at 23, that he should be deemed to have become

permanently disabled for the purpose of the retroactive pension benefit provision as of the December

1994 RO decision granting him non-service-connected pension benefits, thus making the July 1995

request for retroactive benefits timely. However, that 1995 request cannot fall within the requisite

one-year period of element 1 as required by § 3.151(b) because VA received it more than four years

after the April 1991 effective date for such disability.

As to element 3, there is no evidence that incapacity ever prevented the appellant from filing

a pension claim, as required by § 3.400(b)(1)(ii)(B). See R. at 21-27, 37,113. The Court holds,

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accordingly, that the requirements for retroactive pension benefits under §§ 3.151 and

3.400(b)(1)(ii)(B), both supra, have not been met. Finally, as to arguments previously raised by the

appellant but implicitly recognized in his brief as unavailing, Br. at 24, neither 38 C.F.R. § 3.201(a)

(1999 and earlier versions) (deeming evidence received by the SSA in support of a claim for Social

Security old age, survivor, or disability benefits to have been received on the same date by VA) nor

the statutory provision it implements, 38 U.S.C. § 5105(b) (deeming a claim for such Social Security

benefits to be treated as an application for VA benefits under chapter 13 of title 38 of the United

States Code), provides a basis for retroactive pension benefits. These provisions apply only, in the

event of the death of the veteran, to a survivor's claim for VA dependency and indemnity

compensation. Cf. Murincsak v. Derwinski, 2 Vet.App. 363, 369-70 (1992) (§ 3.201(a) and section

5105 have "no application to the merits" of a claim for total disability based on individual

unemployability).

D. Argument 5: CUE Claims

1. CUE in the 1990 Board Decision

The appellant asserts CUE in the March 1990 Board decision on the basis that VA in 1990

failed in its duty to assist him by obtaining a certified copy of his Social Security file, including all

medical reports therein. See discussion of duty to assist, infra, at Part E. The appellant also

contends that the 1990 decision contains CUE because it ignored evidence showing that the SSA in

February 1989 had granted him total disability benefits and because it also ignored other evidence

of unemployability. For the following reasons, the Court rejects the appellant's arguments.

First, a failure of a duty to assist does not rise to the level of CUE. See Baldwin v. West,

13 Vet.App. 1,7 (1999) ("a breach of the duty to assist . . . cannot form the basis of a CUE claim);

Caffrey v. Brown, 6 Vet.App. 377, 383-84 (1994); see also Hayre v. West, 188 F.3d 1327, 1330,

1331-32 (Fed. Cir. 1999) (ratifying Caffrey, supra). Second, the Court's authority to consider claims

of CUE in Board decisions is premised upon, inter alia, 38 U.S.C. § 7111, which took effect on

November 21, 1997. See Pub. L. No. 105-111, 111 Stat. 2271 (1997) (the provisions of Pub. L.

105-111 “apply to any determination made before, on, or after the date of the enactment.”). Section

7111 requires that such arguments must be raised to the Board in the first instance and decided by

the Board on the merits; they may not be raised in the first instance on appeal to the Court. See

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38 U.S.C. § 7111(e); Ledford v. West, 136 F.3d 776 (Fed. Cir. 1998) (holding that this Court lacked

jurisdiction to hear a CUE claim raised for the first time on appeal). The record shows that the

appellant made no CUE claim to the Board in 1997, but argued only that certain medical evidence,

among numerous medical reports considered by the Board in 1990, supported his contention that he

was unemployable. R. at 1078. The record also shows that the Board made no determination with

respect to CUE in its 1990 decision. See R. at 1-17.

Third, even were the claim properly before the Court, and even had the record at the time of

the 1990 Board decision contained all of the appellant's Social Security records, a claim of CUE

would fail in light of evidence also in the record in 1990 indicating that he was not totally disabled,

R. at 42-45, 439, 458, 621, 630-31, 650, 653. See Crippen v. Brown, 9 Vet.App. 412, 418 (1996)

(CUE is present only where there is an error that is "undebatable, so that it can be said that

reasonable minds could only conclude that the original decision was fatally flawed."); Eddy

v. Brown, 9 Vet.App. 52, 57 (1996) (more than an assertion of a disagreement as to how the facts

were weighed or evaluated is required to raise a valid claim of CUE); Fugo v. Brown, 6 Vet.App.

40, 43-44 (1994) ("even where the premise of error is accepted, if it is not absolutely clear that a

different result would have ensued, the error complained of cannot be, ipso facto, clear and

unmistakable"); see also Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc); 64 Fed. Reg.

2135-36 (1999); 38 C.F.R §§ 20.1400 - 20.1410 (1999).

2. Other CUE Claims

The appellant asserts clear error in both the 1994 RO decision and the March 1997 Board

decision (considering the 1994 RO decision on appeal) on the basis that they also should have taken

into consideration the 1989 SSA award of total disability (granting an effective date for some Social

Security purposes in 1983) and have thus assigned an effective date for permanent and total disability

for VA pension purpose as of the December 1984 date of his original claim. Br. at 10. The Court

understands this argument as alleging CUE in both decisions. For the following reasons, the Court

rejects these arguments.

First, as to a claim of CUE in the 1994 RO decision, a CUE claim would be "a collateral

attack on a final RO decision." See Donovan v. Gober, 10 Vet.App. 404, 407 (1997), aff'd sub nom.

Donovan v. West, 158 F.3d 1377 (Fed. Cir. 1998), cert. denied, 119 S.Ct. 1255 (1999); Phillips

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v. Brown, 10 Vet.App. 25, 31 (1997); see also 38 U.S.C. § 5109A (providing for CUE claims as to

prior, final, RO decisions). Where, as here, an RO decision is appealed directly to the Board, it does

not become final. See 38 U.S.C. § 7105(c) (RO decision is rendered nonfinal by timely appeal to

Board). Accordingly, the appellant may not bring a CUE claim as to the nonfinal 1994 RO decision.

See Link v. West, 12 Vet.App. 39, 45 (1998) (RO decisions rendered nonfinal by timely appeal to the

Board are not, as a matter of law, subject to CUE claims); Best v. Brown, 10 Vet.App. 322, 325

(1997) (appellant cannot raise CUE with respect to rating decision that is not final).

Second, as to CUE in the 1997 Board decision on appeal here, section 7111, as discussed

above, does not allow review of a claim for CUE in a Board decision unless such claim has first been

submitted directly to the Board for consideration. See Ledford, supra; Carpenter v. Gober,

11 Vet.App. 140, 144 (1998) ("the new section 7111 does not on its face apply unless the claimant

has already submitted to VA a claim of CUE"). This claim has impermissibly been made for the first

time on appeal to the Court. Third, CUE cannot lie with respect to a Board decision that is on direct

appeal to the Court. Although the Court may consider a collateral attack on a determination made

by the Board as to CUE in a prior Board decision, as a matter of law, there can be no CUE as to the

Board decision directly on appeal. See 38 U.S.C.§ 7111(a) ("If evidence establishes [CUE], the prior

decision shall be reversed or revised.") (emphasis added); see also Carpenter, supra (section 7111

applies only where a claim of CUE "in a prior BVA decision" has been submitted to VA).

E. Argument 6: Duty to Assist

The appellant specifically argued to the Board that VA failed in its duty to assist him by

obtaining his SSA records after receiving a copy of the SSA decision in 1989, and that the SSA

records consequently were not before the Board when it made its 1990 decision. R. at 1078. The

Board in the decision on appeal did not specifically address that question, but has, rather, stated only

that the "appellant has presented no legal basis for" negating the 1990 decision, and that the 1990

decision was "nevertheless final, cutting off the pension claims which predate it." See R. at 10. The

first question the Court must decide is whether it has jurisdiction to consider this issue. An RO

decision, which is not of record but referenced by the Board, R. at 9, and which necessarily would

have been made in or subsequent to the December 1994 RO decision awarding the appellant

non-service-connected pension, assigned an effective date of June 1991 for the pension award. The

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appellant filed an NOD in September 1995, specifically, for the first time subsequent to the

assignment of the effective date, contesting the effective date of the pension award. R. at 736. The

Court of Appeals for the Federal Circuit has stated that the issue of effective date can give rise to its

own NOD. In Barrera v. Gober, 122 F.3d 1030, 1032 (Fed. Cir. 1997), the Federal Circuit

considered two NODs, one pertaining to the rating of a disability and one pertaining to the effective

date of that rating, and held that multiple NODs may be filed with respect to multiple issues

concerning one claim. See also Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997)

(separate NODs confer jurisdiction as to separate elements of a claim, e.g., service connection and

rating of disability); Hanson v. Brown, 9 Vet.App. 29, 31 (1996). The appellant's NOD was filed

(1) within the requisite one-year period for filing, set forth in 38 U.S.C. § 7105(b)(1) ("notice of

disagreement shall be filed within one year from the date of mailing of notice of the result of initial

review or determination"), and (2) on or after November 18, 1988, see Buckley v. West, 12 Vet.App.

76, 81-82 (1998) ("Court has jurisdiction to review only those final BVA decisions prior to which

an NOD was filed on or after November 18, 1988, as to an underlying decision of an RO or other

agency of original jurisdiction") (citing Veterans' Judicial Review Act (VJRA), Pub. L. No. 100-687,

§ 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.§ 7251 note)). Grantham, 114 F.3d at 1158-

59 (separate NODs confer jurisdiction as to separate elements of a claim, e.g., service connection

and rating of disability). Accordingly, the Court clearly has jurisdiction over this issue.

The Court next notes that, because the appellant served for a period of 90 days or more

during a period of war, and there was medical evidence of total disability and evidence that he met

the requisite income standard before the Board at the time of its 1990 decision, the appellant's claim

for non-service-connected pension was then well grounded. R. at 19, 33-34, 43-45, 365. See 38

U.S.C. § 1521(a); Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999). Thus, VA consequently

had a duty to assist the appellant in developing the facts pertinent to his well-grounded pension

claim, including obtaining all relevant SSA records regarding his disability and employability. See

38 U.S.C. § 5107(a); Voerth v. West, 13 Vet.App. 117, 121 (1999) (included in the section 5107(a)

duty to assist "is the responsibility of VA to obtain any relevant records from the [SSA]."); Baker

v. West, 11 Vet.App. 163, 169 (1998) (when VA put on notice of SSA records prior to issuance of

a final decision, the Board must seek to obtain the records); Murincsak, 2 Vet.App. at 370 (under

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section 5107(a), VA has a statutory duty to acquire both the SSA decision and the supporting

medical records pertinent to a claim); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992) (where VA

has SSA decisions determining disability and unemployability for SSA purposes, VA is required to

obtain SSA records relating to those decisions). The question now becomes whether the Board's

failure to fulfill its duty to assist in 1990 kept open the claim then before it, thus possibly allowing

for the award of an earlier effective date for the non-service-connected pension benefit.

In Hayre, the United States Court of Appeals for the Federal Circuit held that the failure of

VA to fulfill the duty to assist by obtaining pertinent service medical records "vitiates the finality of

an RO decision for purposes of direct appeal." Hayre, 188 F.3d at 1333. The Court can discern no

difference where a duty to assist violation has been committed by the Board, rather than an RO.

Accordingly, because there is no question that the Board was obliged in 1990 to obtain all relevant

SSA records and did not do so, such failure vitiates the finality of the 1990 Board decision, and, for

purposes of awarding a proper effective date with respect to the 1994 pension award, the August

1987 claim, the subject of the 1990 Board decision, remains open.

III. CONCLUSION

Any appeal with respect to the appellant's arguments 1, 2, 3, and 5, discussed in Parts II.A.,

B., and D. above, is DISMISSED. Based on the discussion in Part II.E. above, to the extent that the

March 26, 1997, decision of the Board did not award an effective date earlier than April 26, 1991,

for a non-service-connected total and permanent disability, the decision is VACATED and that

matter is REMANDED for proceedings consistent with this opinion. The decision of the Board is

otherwise AFFIRMED.

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