The opinion
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 97-1192
FRANK L. TETRO , III, APPELLANT ,
V.
HERSHEL W. GOBER,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided Sep 6, 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, all of Washington, D.C., were
on the pleadings for the appellee.
Before KRAMER, IVERS, and GREENE, Judges.
IVERS, Judge, filed the opinion of the Court. KRAMER, Judge, filed an opinion concurring
in part and dissenting in part.
IVERS, 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).
On April 4, 2000, the Court issued an opinion in this case, Tetro v. West, 13 Vet.App. 404
(2000), that affirmed in part, and vacated in part the Board's March 26, 1997 decision. The Secretary
filed a motion for reconsideration and for full Court review, dated April 25, 2000, as to the Court's
holding regarding the application of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), to the facts of
this case. The Court will grant the Secretary's motion for reconsideration, withdraw its April 4, 2000
opinion, and issue this opinion in its stead. The Court further 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. None of the 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 through 6.
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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
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
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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
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),
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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
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 from facts found 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
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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
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, (Br. 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
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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,
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, in the event
of the death of the veteran, only 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 the duty to assist cannot be the basis for a CUE claim. 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, 188 F.3d at 1330-32 (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
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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 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 purposes 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.
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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
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, 12 Vet.App. at 45 (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, a claim of CUE applies 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 in a January 1997 written presentation 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
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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 after the December 1994 RO
decision, awarded the appellant non-service-connected pension and assigned an effective date of
June 1991 for the pension award. The appellant filed an NOD in September 1995, specifically
contesting for the first time the effective date of the pension award. R. at 736. The U.S. Court of
Appeals for the Federal Circuit (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) ("[NOD] 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).
Consequently, under current law, VA 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
10
(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 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.
There are currently two statutorily authorized means to obtain reevaluation of a final VA
benefits decision. A final decision disallowing a claim may be revised based upon a showing of
clear and unmistakable error in a prior decision by the Secretary or the Board pursuant to 38 U.S.C.
§§ 5109A and 7111, or reopened based upon submission of new and material evidence pursuant
to 38 U.S.C. § 5108. In Hayre, the U.S. Court of Appeals for the Federal Circuit created a
nonstatutory means to obtain review of a previously denied claim. That court held that a breach of
the duty to assist is not the type of error that can provide the basis for a CUE claim in accordance
with this Court's case law. Hayre, 188 F.3d at 1333-34; see Baldwin, 13 Vet.App. at 7; Caffrey,
6 Vet.App. at 383-84. However, the Federal Circuit went on to hold that "[i]n cases of grave
procedural error . . . RO or Board decisions are not final for purposes of direct appeal." Hayre,
188 F.3d at 1333. (Citing as examples of cases involving grave procedural error: Tablazon v. Brown,
8 Vet.App. 359, 361(1995); Hauck v. Brown, 6 Vet.App. 518, 519 (1994); Kuo v. Derwinski,
2 Vet.App. 662, 666 (1992); Ashley v. Derwinski, 2 Vet.App. 307, 311 (1992)). "A breach of the
duty to assist in which the VA failed to obtain pertinent SMRs specifically requested by the claimant
and failed to provide the claimant with notice explaining the deficiency is a procedural error of, at
least, comparable gravity that vitiates the finality of an RO decision for purposes of direct appeal."
Id. This Court has recently held, in Simmons v. West, that Hayre does not require the tolling of the
underlying final RO decision for a "garden variety" breach of VA's duty to assist. Simmons v. West,
13 Vet.App. 501, 509 (2000), reconsidered, __Vet.App.__, slip op. at 9 (August 30, 2000). The
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Court in Simmons noted that:
Not only do we believe that Hayre does not require that a "garden variety" breach of
VA's duty to assist, in the development of a claim that is well grounded, be construed
as tolling the finality of an underlying RO decision, but we also believe that it would
be unwise for this Court to extend Hayre to encompass such a duty-to-assist
violation. At some point, there is a need for finality within the VA claims
adjudication process; thus, the tolling of finality should be reserved for instances of
"grave procedural error"--error that may deprive a claimant of a fair opportunity to
obtain entitlements provided for by law and regulation.
Id. (Emphasis in original.)
The Secretary argues persuasively that, at the time of the 1990 decision, the scope of the
Secretary's duty to assist concerning the procurement of SSA records was not clearly defined.
Secretary's Motion for Reconsideration at 6-8. In contrast to the situation in Hayre, where there was
a specific VA Adjudication Procedure Manual M21-1 provision prescribing the steps to be taken to
obtain SMRs, in this case there were no analogous M21-1 provisions requiring the procurement of
SSA records in 1990. The dissent asserts that in 1990 the Board was under a statutorily prescribed
duty pursuant to 38 U.S.C. §§ 5106, 5107 (sections 3006 and 3007 in 1990) to obtain the appellant's
SSA records. Section 5107(a) requires that "The Secretary shall assist such a claimant in developing
the facts pertinent to the claim. Such assistance shall include requesting information as described
in section 5106 of this title." (Emphasis added). Section 5106 provides, "The head of any Federal
department or agency shall provide such information to the Secretary as the Secretary may request
for purposes of determining eligibility for or amount of benefits, or verifying other information with
respect thereto." (Emphasis added). (In 1990 both sections 3006 and 3007 were identical in
substance to the currently renumbered sections 5106 and 5107, with the exception that the term
"Administrator" was used in place of the current term "Secretary"). The dissent argues that in 1990
the Board had a clear duty under sections 3006 and 3007 (currently 5106 and 5107) to obtain the
appellant's SSA records, making any future Court precedent or Manual 21-1 provisions irrelevant
regarding its duty to obtain those SSA records.
The plain language of sections 3006 and 3007 clearly indicates that the Secretary's duty is
to request information from other federal agencies, not records. That was the state of the law in
1990. While the Board never directly requested information from the SSA, it utilized the necessary
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information contained in the February 1989 SSA decision in making its 1990 decision.
Additionally, Dr. Simpson, whose medical opinion was relied upon in the 1989 SSA decision,
testified at the appellant's Board hearing. The Board clearly received information in satisfaction of
the applicable law in 1990. Therefore, even under the dissent's position, the Board, in 1990, fulfilled
its statutory duty.
The Court's case law rendered after the Board issued its decision recognized the scope of the
Secretary's duty to assist to include the obligation to request relevant SSA records as discussed
supra. In light of the fact that the Secretary's duty to assist was not well defined at the time of the
decision in 1990, the Court believes that it would be unfair, with the benefit of hindsight and the
knowledge of subsequent case law, to conclude that the Board, under the duty to assist, would have
been required to request the SSA records. The Secretary correctly asserts that it did not become clear
that the Secretary's duty to assist required requesting the specific records relied upon by the SSA
until after there was judicial review of VA's procedures.
Under Simmons, not every breach of the duty to assist constitutes error sufficient to vitiate
a final decision. In this case, the record reflects that, while the Board had not obtained the appellant's
SSA records at the time it made its March 1990 decision (R. at 41-46), the Board did take the SSA
decision into consideration when makings its decision. The appellant was aware of the existence
of his SSA file and submitted the favorable February 1989 SSA decision to VA. R. at 45, 1328, 34.
Both the SSA and the Board decision discuss the September 1987 EEG results and reports and
testing conducted by Dr. Simpson and Dr. Jutsky. R. at 42-44, 1332-33. Dr. Simpson, whose report
the SSA relied upon, testified at the veteran's Board hearing. R. at 41, 43. Although the Board did
not specifically request the SSA records as would be required under current case law and procedures,
the veteran did receive the benefit of having the Board consider his SSA decision and underlying
medical evidence as part of its decision making process. In light of the fact that Hayre is a judicially
created departure from statutorily mandated rules governing the finality of VA decisions, Hayre
should not be read broadly as a basis for disregarding finality in situations not involving "grave
procedural error." Simmons instructs that such error must be of the kind that "may deprive a
claimant of a fair opportunity to obtain entitlements provided for by law and regulation." Simmons,
13 Vet.App. at 509, reconsidered, __Vet.App.__, slip op. at 9. The Board's failure to procure the
13
SSA records at the time of the March 1990 decision was not an error of such magnitude that it
deprived the appellant of a fair opportunity to obtain a benefit provided by law. The Court holds
that, because there was a dearth of clear authority to guide the Board in 1990 concerning the
procurement of SSA records, the Board's failure to obtain the SSA records, while it would currently
constitute a breach of the duty to assist, did not give rise to a grave procedural error comparable to
that in Hayre.
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. The decision of the Board is otherwise AFFIRMED.
KRAMER, Judge, concurring in part and dissenting in part: As the author of the
opinion in this case that was withdrawn, I happily concur with Parts II.A, B., C., and D., of the
majority opinion. However, I cannot agree with the majority's approach and conclusion in Part II.E.,
and I dissent to that extent.
As a preliminary matter, I note that I share the majority's concern regarding the possible
implications of a broad reading of the decision of the United States Court of Appeals for the Federal
Circuit (Federal Circuit) in Hayre v. West, 188 F.3d 1327, 1332-35 (Fed. Cir. 1999), including,
absent statutory authority, the vitiation of the finality of a VA decision. See id. at 1333 (VA's breach
of duty to assist by failing to obtain specifically requested service medical records (SMRs), and
failing to so notify claimant, is "grave procedural error" justifying holding otherwise final VA
decision open); see also 38 U.S.C. § 5107(a) (VA has duty to assist in development of well-grounded
claim). That said, there is no question that Hayre is binding precedent, and there is no question that
the appellant here submitted a well-grounded non-service-connected pension claim. Consequently,
VA had a duty to assist in the development of that claim that included, in the majority's words,
"obtaining all relevant S[ocial] S[ecurity] A[dministration (SSA)] records regarding his disability
and employability," ante at ___, slip op. at 11, and that the Board breached that duty when it failed
to seek and obtain SSA medical records after receipt of an SSA decision determining that, as of May
1985, the appellant was totally disabled and unable to undertake any employment. Record (R.) at 45,
14
168, 170, 432-33; see Voerth v. West, 13 Vet.App. 117, 121 (1999); Baker v. West, 11 Vet.App. 163,
169 (1998); Murincsak v. Derwinski, 2 Vet.App. 363, 370 (1992). Nevertheless, the majority,
relying on the Court's decision in Simmons v. West, 13 Vet.App. 501 (2000), reconsidered, ___
Vet.App. ___ (August 30, 2000), has created a construct whereby a breach of the duty to assist in
each case must of necessity be measured by its degree of importance. For the following reasons, the
majority's analysis is flawed.
First, VA's duty to assist in the development of a claim attaches only where a claimant first
has submitted a well-grounded claim. See 38 U.S.C. § 5107(a); Epps v. Gober, 126 F.3d 1464, 1469
(Fed. Cir. 1997). Although a well-grounded claim is a "plausible" claim, that is, a claim that is
meritorious on its own or capable of being substantiated, Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990), a claim that is well grounded does not necessarily warrant an award of veterans' benefits (but
a claim that warrants benefits is always well grounded). See, e.g., Vargas-Gonzalez v. West,
12 Vet.App. 321, 328 (1999) (discussing evidence necessary to establish entitlement to non-service-
connected pension); see also Rose v. West, 11 Vet.App. 169, 171 (1998) (evidence necessary to
establish service connection); Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (same), aff'd per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table). Thus, within the "manifestly pro-claimant" VA benefits
system, Hayre, 188 F.3d at 1333, the purpose of the duty to assist is for VA to undertake the
necessary evidentiary development to, in essence, determine if the quantum of evidence can be raised
from that sufficient to well ground a claim to that sufficient to bring the evidence into equipoise.
See 38 U.S.C. § 5107(b) (where approximate balance of positive and negative evidence exists
regarding material issue, benefit-of-doubt in resolving such issue given to claimant); Hayes
v. Brown, 5 Vet.App. 60, 69-70 (1993) (benefit of doubt doctrine applicable where evidence is in
"equipoise"); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990) (same). In other words, the purpose
of the duty to assist, with respect to each and every well-grounded claim, is for VA to obtain the
evidence necessary to determine whether an award of benefits is warranted. In such a scheme, there
can be no "major" or "minor" violation of the duty to assist; every action taken pursuant to that duty
is to obtain the missing quantum of evidence that may make the difference in an award of benefits.
Second, the majority bases its differentiation between major and minor breaches of the duty
to assist on the Court's statement in Simmons that "Hayre does not require that a 'garden variety'
15
breach of VA's duty to assist . . . be construed as tolling the finality of an underlying RO decision".
Simmons, 13 Vet.App. at 508 (emphasis in original), reconsidered, ___ Vet.App. ___, slip op. at 9.
The majority fails to acknowledge, however, that such language was mere dictum, and that the Court
in Simmons nevertheless also concluded that the appellant there "ha[d] not shown that an extant and
applicable VA duty to assist was violated" and that "such a failing" was "fatal to the Hayre relief
[sought]." Simmons, 13 Vet.App. at 507, reconsidered, ___ Vet.App. ___, slip op. at 8. Moreover,
the Simmons Court, in essence, distinguished between a case involving potential evidence that the
claimant easily would be able to obtain on his or her own, such as where "the veteran could readily
have obtained a medical examination from a private physician and submitted the results," and a case
involving already-existing evidence in the possession of VA ("VA was in control of evidence
necessary to prove [the] claim"), and concluded that the latter situation would represent a "grave
procedural error." Simmons, 13 Vet.App. at 508, reconsidered, ___ Vet.App. ___, slip op. at 9
(citing Veterans Benefits Administration Letter 20-99-60 at 1 (Aug. 30, 1999) (deeming SMRs and
VA medical center records to be in VA custody)). Although what is involved in this case is SSA,
rather than VA, records, it is clear that VA knew that such records existed and were in the possession
of the Federal government. Clearly, then, the case before us is much more analogous to the latter,
i.e., a "grave procedural error," than to the former, i.e., a "garden variety breach," as described in
Simmons.
Third, despite the Board's acknowledged breach of the duty to assist here, the majority
declines to hold open the 1990 Board decision on the basis that, at the time of that decision, the law
pertaining to VA's duty to assist by obtaining SSA records "was not clearly defined." Ante at ___,
slip op. at 12. By this, the majority apparently means that at the time of the 1990 Board decision
there was no VA Adjudication Procedure Manual M21-1 (Manual M21-1) provision, or other
internal VA issuance, extant that required VA to undertake the action that it failed to do (i.e., to
obtain SSA records after receiving notice of an SSA decision awarding the appellant benefits on the
basis of total unemployability), and that the Court's caselaw holding to that effect had not yet been
issued. Ante at ___, slip op. at 12; see Hayre, 188 F.3d at 1331-32 (discussing VA Adjudication
Procedure Manual M21-1, Part VI, Para. 6.04(b), requiring VA to make supplemental request for
SMRs when initial request results in obtaining only partial records); see also Masors v. Derwinski,
16
2 Vet.App. 181, 188 (1992) (VA failure to obtain SSA records after receipt of SSA decision
determining unemployability is breach of duty to assist). However, the majority ignores that, at the
time of the 1990 Board decision, Congress had mandated that VA's duty to assist a well-grounded
claimant "shall include requesting information as described in section 3006 of this title." 38 U.S.C.
§ 3007(a) (1988) ( recodified in 1991 as 38 U.S.C. § 5107(a) by Pub. L. No. 102-40, § 402(b)(1),
(d)(1), 105 Stat. 238, 239). Former section 3006 provided that "[t]he head of any Federal department
or agency shall provide such information to [VA] as [VA] may request for purposes of determining
eligibility for or amount of benefits or verifying other information with respect thereto." 38 U.S.C.
§ 3006 (1988) (recodified in 1991 as 38 U.S.C. § 5106 by Pub. L. No. 102-40, § 402(b)(1), 105 Stat.
238).
Thus, in the present case, at the time of its 1990 decision, the Board's duty to obtain the
appellant's SSA records, which were certainly highly pertinent to the his pension claim, was
explicitly outlined by statute. See generally Hayre, 188 F.3d at 1331 (recognizing that "[r]easonable
efforts by the VA to obtain records regarding medical history from other Federal departments or
agencies are an important part of the VA's affirmative duties under [former section 3007(a) and]
38 U.S.C. § 5107(a)"); Masors, 2 Vet.App. at 187-88. The fact that VA had not seen fit to set forth
that duty in a Manual M21-1 provision and that the Court had not yet specifically so held, therefore,
is irrelevant. Contrary to the majority's view, ante at ___, slip op. at 12, in light of such a statutorily
prescribed obligation, the Secretary's argument that "at the time of the 1990 decision, the scope of
the Secretary's duty to assist concerning the procurement of SSA records was not clearly defined,"
should be rejected. Indeed, given the statutory requirement, the majority's characterization of this
argument as "persuasive," and its determination that it therefore would be "unfair to conclude that
the Board, under the duty to assist, should have requested the records relied upon by the [SSA]," id.,
simply is inexplicable. In sum, I believe there was no ambiguity as to the Board's duty in 1990 to
seek and obtain the appellant's SSA records.
Fourth, even assuming that there was such an ambiguity, however, and that the two-tiered
approach to breaches of the duty to assist adopted by the majority and by the panel in Simmons is
appropriate, such that in order to hold an otherwise final decision open under Hayre, it must first be
determined whether a breach of a duty to assist "'may deprive a claimant of a fair opportunity to
17
obtain entitlements provided for by law and regulation,'" ante at ___, slip op. at 13 (quoting
Simmons, 13 Vet.App. at 508, reconsidered ___ Vet.App. ___, slip op. at 9), the majority's
evaluation as to why there has been no such deprivation here is problematic. Without further
analysis, the majority simply seems to conclude that the "dearth of clear authority to guide the Board
in 1990 concerning the procurement of SSA records" equates to no "depriv[ation] of a fair
opportunity." Ante at ___, slip op. at 13. However, the two concepts are not equatable. The former
goes to the clarity of the requirement; the latter goes to the impact on the appellant of not meeting
the requirement. In other words, the former is procedural and the latter is substantive. Can there be
any doubt that the failure to undertake even a "vague" procedural requirement can nevertheless
"deprive a claimant of a fair opportunity" and thus result in substantial adverse impact to a claimant?
Moreover, in the present case, it is clear from the record that the Board's failure to obtain the
appellant's SSA medical records in 1990 deprived the appellant of the opportunity to obtain pension
benefits at that time and resulted in the almost 5-year delay in the award to the appellant of pension
benefits. Under the majority's own statement of facts, the Board in 1990, although it acknowledged
the appellant's SSA award decision, essentially ignored the existence of the appellant's SSA medical
records and their pertinence to the question of his unemployability. Without the benefit of having
all of that evidence before it, the Board stated: "We recognize that the [appellant] 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 the laws governing veterans' benefits. R. at 45-46.
Subsequently, however, when the appellant attempted to reopen his pension claim, the RO
recognized that VA should have obtained the appellant's complete SSA medical records, and
declined to make a decision on the claim to reopen until it had obtained the records from SSA.
R. at 168, 170, 185. Upon receipt of the SSA records, the RO awarded pension entitlement in
December 1994, stating: "[N]umerous evaluations and medical reports . . . provided by the [SSA]
show [the appellant] suffering from impairments which restrict his capacity to perform basic work
activities. . . . [C]onsidering . . . his long and well-established unemployability and Social Security
disability being his only source of income, entitlement to pension is conceded." R. at 184. From
such a record, it is obvious that, despite the fact that the Board in 1990 had before it some of the
same evidence that was before SSA when it made its determination of unemployability, see ante
18
at ___, slip op. at 12, the sum of the evidence contained in the appellant's SSA medical records,
finally obtained by VA in 1994, tipped the balance and resulted in the award of pension benefits.
Thus, contrary to the majority's conclusion that the appellant was not deprived of a fair opportunity
to obtain a benefit, see ante at ___, slip op. at 13, the deprivation of more than 4 years of pension
benefits clearly rests upon the Board's breach of its duty to assist in 1990.
Fifth, the facts of this case fit squarely into the scenario contemplated by the Federal Circuit
in Hayre as requiring the vitiation of the finality of a VA decision. In Hayre, an RO made a single
request to the National Personnel Records Center for SMRs pertaining to the veteran's claim for a
nervous condition, about which it had been informed by the veteran. Although the RO did not obtain
the SMRs, prior to denying the claim it neither informed the veteran that it did not obtain them,
suggested that the veteran obtain them himself, nor suggested the submission of alternative evidence.
That decision was not appealed and became final. See Hayre, 188 F.3d at 1329, 1332. The veteran
subsequently was awarded service connection for post-traumatic stress disorder (PTSD), which
decision he appealed on the basis that the RO denial contained clear and unmistakable error (CUE)
and that he was entitled to an effective date based upon his original, denied claim for a nervous
condition. Id. at 1329-30. The Federal Circuit cited sections 5107 and 5106, formerly sections 3007
and 3006 (as discussed above), in holding that VA's duty to assist in the development of a claim
included the making of more than a single, unfulfilled, request for SMRs (i.e., records in the hands
of another Federal agency) and also included an obligation to notify a claimant of its failure to obtain
such records and give the claimant the opportunity "to independently attempt to obtain the [records,
or] to submit alternative evidence" prior to making a determination. Id. at 1332; see also Schafrath
v. Derwinski, 1 Vet.App. 589, 593 (1991) (duty to assist requires VA either to "obtain the records
before deciding the case or to explain[ the] failure to do so"); VA's Adjudication Procedure Manual
M21-1, Part VI, Para. 6.04(b), supra. That court then concluded that a breach of such duties to assist
amounted to a "grave procedural error . . . that vitiates the finality" of the underlying agency decision.
Hayre, 188 F.3d at 1333. Finally, the Hayre court held that no remedy would be available through
the veteran's CUE claim "because Mr. Hayre cannot prove that the missing SMRs would manifestly
change the outcome of the 1972 rating decision." Id.; see, e.g., Baldwin v. West, 13 Vet.App. 1, 7
(1999) (breach of duty to assist cannot form basis of collateral attack on final decision through claim
19
of CUE); see also 38 U.S.C. § 7111(e) (claims of CUE in final Board decision must be raised in first
instance to Board).
Here, as in Hayre, the Board clearly breached its duty to assist the appellant when it failed
to seek and obtain pertinent records in the hands of another Federal agency, the existence of which
it was aware, failed to notify the appellant that it had not obtained them, and failed to notify him that
he could independently obtain them or submit alternative evidence, all prior to denying his claim.
(To the extent that the majority attempts to limit the reach of section 5106 (formerly section 3006)
to "information," as contrasted with "records," I note that the former encompasses more than the
latter, which is a specific type of the former. See WEBSTER 'S NEW WORLD DICTIONARY 693 (3d
Coll. Ed. 1988) [hereinafter WEBSTER 'S ] (information is, inter alia, "knowledge acquired in any
manner; facts; data; learning; lore. . . a person or agency answering questions as a service to others");
WEBSTER 'S at 1122 (a record is, inter alia, "anything that is written down and preserved as evidence;
[an] account of events; . . . the known or recorded facts about anyone or anything"). Moreover, to
suggest that the records in question do not constitute "information as described in section 5106," "for
purposes of determining eligibility for or amount of benefits," ante, slip op. at 12 (quoting section
5107(a) and section 5106, respectively), simply "won't play in Peoria.") In addition, also as in
Hayre, the appellant had no possible CUE remedy for the breach. (I note that, in its 1997 decision,
the Board stated that the appellant presented no legal basis "to negate and ignore the March 1990
final Board decision." R. at 10.) Finally, although I acknowledge that the veteran in Hayre had
asked for VA assistance in obtaining his SMRs prior to the RO making the denial, and that the
appellant here had not, such distinction is without effect. As succinctly stated by the Federal Circuit,
"[i]f a veteran, who is later able to obtain counsel or serendipitously discovers a breach of the duty
to assist, has no remedy, then the duty to assist becomes a hollow obligation." Hayre, 188 F.3d
at 1334 (emphasis added). Therefore, the finality of the 1990 Board decision should be held to be
vitiated under Hayre, and the matter remanded for further adjudication. See Simmons, 13 Vet.App.
at 508, reconsidered ___ Vet.App. ___, slip op. at 9.
Consequently, I am unable to agree with the majority's reasoning or conclusion with respect
to Part II.E., and I therefore respectfully dissent to that extent.
20