Andre v. West

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 98-1219

PHILLIP ANDRE , APPELLANT ,

V.

TOGO D. WEST , JR.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before NEBEKER, Chief Judge, and IVERS and GREENE, Judges.

ORDER

Veteran Phillip Andre, through counsel, appeals a May 7, 1998, Board of Veterans' Appeals

(Board or BVA) decision that determined that there was no clear and unmistakable error (CUE) in

a June 29, 1973, VA regional office (RO) decision that denied service connection for his

schizophrenic reaction. The Court has jurisdiction over the issues raised in the Board decision under

38 U.S.C. §§ 7252(a) and 7266(a). For the following reasons, the Court will affirm the Board's

decision and dismiss the appeal as to those matters over which there is no jurisdiction.

Mr. Andre served on active duty in the U.S. Navy from October 14, 1965, to January 19,

1966. Record (R.) at 32. In March 1973, he filed a claim for service connection for a mental

disorder. R. at 35-38. In June 1973, the St. Louis, Missouri, RO denied service connection after

concluding that the evidence of record indicated that his personality disorder existed prior to service;

that it was not aggravated in service; and that it later matured into a psychosis after hospitalization

beginning in January 1969. R. at 72-74. Mr. Andre did not appeal that decision.

In August 1992, the Board reopened Mr. Andre's claim. R. at 592-98. Finding an

approximate balance in the evidence and expressly relying upon the provisions of 38 U.S.C.

§ 5107(b), the Board awarded service connection for schizophrenia. Id. In September 1992, the RO

implemented the Board's August 1992 decision by granting Mr. Andre service connection at 100%

disabling, effective June 12, 1990. R. at 600-01.

In March 1995, Mr. Andre, through counsel, filed a claim asserting that CUE was committed

in the June 29, 1973, RO decision. R. at 636. He specifically alleged that VA failed in its 38 U.S.C.

§ 5107 duty to assist him in developing that claim and that "[t]he decision was factually erroneous

because it should have allowed service[ ] connection." Id. After a May 1995 RO decision

determined that the June 1973 decision did not contain CUE (R. at 639-40), Mr. Andre filed, through

the same counsel, a Notice of Disagreement (NOD), which specifically stated:

The veteran herewith files his [NOD] with the Rating Decision dated May 2, 1995,

and asks for a reconsideration of this decision by the Board of Veteran's [sic]

Appeals.

Please issue a Statement of the Case in response to this [NOD] so that the veteran

may file a VA Form 9 to perfect his appeal.

R. at 645. The RO issued a Statement of the Case (SOC), which framed the issue: "WHETHER CLEAR

AND UNMISTAKABLE ERROR EXISTS IN RATING DECISION OF 6-29-73 FOR NOT GRANTING SERVICE

CONNECTION FOR SCHIZOPHRENIC REACTION ." R. at 650. In the SOC, the RO discussed Mr. Andre's

contentions that the decision was factually erroneous and that VA failed in its duty to assist him.

R. at 650-51. In the substantive appeal to the Board, Mr. Andre, again through counsel, averred:

"The veteran intends to dispute every statement, allegation or inference contained in the letter and

Statement of the Case that is inconsistent with the veteran's position on the issues, or not expressly

admitted by the veteran." R. at 656. In the decision here on appeal, the Board found that in the 1973

adjudication, the RO considered all the evidence that was of record at that time and did not commit

CUE in its 1973 decision. R. at 2-3. Further, the Board noted that a disagreement as to how facts

were weighed or evaluated (citing Eddy v. Brown, 9 Vet.App. 52 (1996)) or a failure of the VA duty

to assist (citing Caffrey v. Brown, 6 Vet.App. 377 (1994)) cannot, as a matter of law, form a basis

for a CUE claim.

Here on appeal, Mr. Andre, through the same counsel, now argues that CUE was committed

in the 1973 RO decision because the RO failed to apply VA regulations found at 38 C.F.R.

§ 3.303(b) and (d) (principles on chronicity and continuity and post-service initial diagnoses) and

38 C.F.R. § 3.304(b) (application of the presumption of soundness) in its adjudication. The

Secretary asserts that the Court should (1) dismiss the claim as a matter of law because the June 1973

RO decision was subsumed by the May 1978 Board decision and is, therefore, immune from

collateral attack; (2) affirm the decision as a matter of law because CUE cannot be based on an

allegation of a breach of the duty to assist or disagreement with how the evidence was weighed; (3)

hold the original CUE claim as abandoned for failure to address that claim on appeal and dismiss

for lack of jurisdiction the new claim of CUE raised first before this Court; or (4) affirm the Board

decision because its conclusion was not "arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law." 38 U.S.C. § 7261(a)(3)(A)).

First, it is noted that Mr. Andre does not raise in his principal brief on appeal the specific

CUE claims addressed by the Board. Therefore, the Court deems appealable issues on those CUE

claims to be abandoned, and the Board's decision will therefore be affirmed. See Ford v. Gober,

10 Vet.App. 531 (1997) (issues and claims not pursued on appeal are considered abandoned);

Bucklinger v. Brown, 5 Vet.App. 435 (1993). This action, however, will not complete the Court's

review. Generally, the Court has jurisdiction over final Board decisions concerning matters derived

from a jurisdiction-conferring NOD. See Veterans' Judicial Review Act (VJRA), Pub. L. No. 100-

687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) (limiting Court's

jurisdiction to specified issues in valid NOD filed with RO or other agency of original jurisdiction

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on or after November 18, 1988); see generally Collaro v. West, 136 F.3d 1304, 1308-09 (Fed. Cir.

1998) (concluding that broad NOD conferred jurisdiction over radix of issues within); Ledford

v. West, 136 F.3d 776, 780 (Fed. Cir. 1998) (holding that NOD specifically identified and thus

limited jurisdiction to issue identified). A jurisdiction-conferring NOD must be examined closely

to determine which claims and issues may properly be presented on appeal. See Collaro and

Ledford, both supra. These claims and accompanying issues must be addressed by the Board and

a final decision made thereon. See 38 U.S.C. §§ 7252(a), 7266(a)(1) (Court reviews final decisions

of Board); but see In re Fee Agreement of Smith, 10 Vet.App. 311, 314 (1997) (holding that failure

of BVA to adjudicate claim before it constitutes denial of that claim for purposes of determining if

attorney may lawfully be paid fee for representing claimant in VA adjudication process). Thus, this

Court's jurisdiction to review a CUE claim is based on the "unassailable premise that we do not have

jurisdiction to review [it] unless it has been previously adjudicated by the Board." Sondel v. Brown,

6 Vet.App. 218 (1994). Further, Sondel also instructs:

[A] claimant may not raise for the first time a specific CUE claim before this Court;

such a request is for de novo review "over decisions that are not within our

jurisdiction." . . . If . . . the appellant has failed to raise the specific issue before the

Board, the appeal must be dismissed as to that issue because it is improperly and

improvidently raised for the first time before this Court.

Sondel, 6 Vet.App. at 220; see 38 U.S.C. § 7105(d)(3) ("Claimant should set out specific allegations

of error in fact and law, such allegations related to specific items in the statement of the case");

38 C.F.R. § 20.202 (1999). Moreover, the Sondel Court observed:

[T]here must be some indication in an appellant's Substantive Appeal, other

documents, or oral testimony that he wishes to raise a particular issue before the

Board. The indication need not be express or highly detailed; it must only reasonably

raise the issue. 38 C.F.R. § 20.202.

Sondel, 6 Vet.App. at 220. In Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000), the U.S. Court of

Appeals for the Federal Circuit (Federal Circuit) held that "a broad NOD . . . may confer jurisdiction

over the entire request for a benefits entitlement." Id. at 1375. This would include particular

arguments advanced in support of a particular benefit request where the Court does possess

jurisdiction over that benefit request. Id. However, a CUE claim is "a collateral attack on a final RO

decision" and must be alleged with specificity. 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. Also, the Federal

Circuit recognized the unique characteristics of CUE claims in Haines v. West, 154 F.3d 1298 (Fed.

Cir. 1998), cert. denied, 526 U.S. 1016 (1999), when it observed that 38 U.S.C. § 5109A, the statute

governing CUE claims:

[M]akes clear that a CUE claim is not a conventional appeal, but rather is a request

for revision of a decision by the Secretary. It is thus a means for correction of a

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clearly and unmistakably wrong decision, compared with an appeal to the Board,

which permits review of decisions that, while in error, do not meet the clear and

unmistakable tests. . . . [I]t is apparent that a clear and unmistakable error is one that,

while fundamental to the correctness of the adjudication of a claim, is one about

which reasonable minds could not differ. See, e.g., Russell v. Principi, 3 Vet.App.

310 (1992) (en banc) (interpreting the regulation that preceded the enactment of the

statute). Such an error is plainly not the usual fare of disputes concerning entitlement

to benefits.

Id. at 1300. Because CUE claims by their very nature must allege "some degree of specificity,"

Crippen v. Brown, 9 Vet.App. 412, 420 (1996); Fugo v. Brown, 6 Vet.App. 40, 44 (1993) ("to raise

CUE there must be some degree of specificity as to what the alleged error is and . . . persuasive

reasons must be given as to why the result would have been manifestly different"), each specific

theory underlying an attack on a final decision would necessarily constitute a separate claim. It

follows that an NOD as to an RO decision on the specific CUE claim would have to embrace the

specificity of the CUE allegation. Cf. Link v. West, 12 Vet.App. 39,44 (1998) (principle of res

judicata applies to final decision on issue of CUE and "'that particular claim of [CUE] may not be

raised again'" (citing Russell, supra). Unlike general claims adjudications, CUE adjudications do

not invite a vague NOD that would allow an appellant to "cut the rough stone of his NOD to reveal

the . . . radix of his issue that lay within." Collaro, 136 F.3d at 1309. Rather, CUE adjudications,

because of their specific nature, trigger specific arguments in the NOD and specific discussion in the

Board decision that then become subject to Court review. See Maggitt and Collaro, both supra;

Ledford, 136 F.3d at 770-80. Here, there is neither an NOD nor a final Board decision addressing

the specific CUE theory or claim now raised by Mr. Andre. Accordingly, as in Sondel, the Court

does not have jurisdiction to address this new claim. It is improperly and improvidently raised for

the first time before this Court. Therefore, the new CUE claim will be dismissed.

Second, Mr. Andre has raised an alternative argument that VA's failure to properly apply

regulations violated its duty to assist him and that under Hayre v. West, 188 F.3d 1327 (Fed. Cir.

1999), such a violation is a grave procedural error which renders the subject 1973 claim nonfinal.

Appellant's Reply Brief at 3. The Court is not persuaded by this argument. If VA failed to apply

a particular regulation when adjudicating the claim, that failure could be a basis for the CUE claim

that was improvidently raised before the Court. See Damrel v. Brown, 6 Vet.App. 242, 245 (1994)

(quoting Russell, 3 Vet.App. at 313-14) ("statutory or regulatory provisions extant at the time were

incorrectly applied"). As observed in Simmons v. West, 13 Vet.App. 501 (2000), the Federal

Circuit's emphasis in Hayre on the need for VA to respond to specifically requested assistance, on

the fair notice aspect, and on the particular importance of SMRs, raised the question whether the

Secretary's failure to fulfill the duty to assist would, in certain circumstances, constitute so grave a

procedural error as to render the subject claim nonfinal. The Hayre elements are not present in this

case, nor has Mr. Andre demonstrated that VA violated any duty to assist that was extant at the time

the RO rendered its decision. See Simmons, 13 Vet.App. at 508 ("in order for an appellant to prevail

on a contention that a pre-VJRA claim remained open under the Hayre approach, the appellant must

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first establish that a breach of an extant and applicable duty to assist occurred in connection with the

adjudication of that pre-VJRA claim.")

Third, Mr. Andre's counsel raises a meritless argument that questions of CUE are questions

of law and therefore a CUE claim is subject to this Court's de novo review. Appellant's Brief at 4-5.

Inexplicably, he has failed to cite or attempt to distinguish the Court's precedents that have addressed

the standard of review for CUE and has chosen to ignore the statutes defining this Court's review

authority. Indeed, the Federal Circuit recently held that the findings of the Board must be accorded

substantial deference where this Court's de novo review rests on factual matters. Hensley v. West,

212 F.3d 1255 (Fed. Cir. 2000). It is also noted that, in his brief, counsel argued extensively to

extend Miller v. West, 11 Vet.App. 345 (1998), to require that clear and unmistakable evidence to

rebut the presumption of soundness predate a claimant's entry into service. Rule 28(g) of the Court's

Rules of Practice and Procedure (Rules) provides: "When pertinent and significant authorities come

to the attention of a party after the party's brief has been filed or after oral argument but before the

[Court's] decision, a party shall promptly advise the Clerk, by letter, with a copy to all other parties,

setting forth the citations." U.S. VET . APP . R. 28(g). In Harris v. West, 203 F.3d 1347 (Fed. Cir.

2000), the Federal Circuit specifically declined to extend Miller as argued by counsel. The Court

is confident that, having represented Mr. Harris in that case, Mr. Andre's counsel was aware of this

holding, but he failed to comply with Rule 28(g). See Penny v. Brown, 7 Vet.App. 348, 351 (1995).

Finally, Mr. Andre's counsel's tactics of arguing what he thinks the law should be without

recognizing existing precedent, diminishes his persuasiveness and his abilities to represent his client

diligently. Further, it serves to expend judicial resources needlessly. Indeed, his attempts to raise

for the first time new CUE claims before the Court frustrates the general pro-claimant VA process

and unnecessarily delays actions on a veteran's potential claims, especially as here, where counsel

has represented the veteran since at least May 1991 (see R. at 439) and thus before the adverse May

1995 RO decision. See Rule 3.3 of the MODEL RULES OF PROFESSIONAL CONDUCT ) [hereinafter

MODEL RULES] (1998)(made applicable to persons admitted to practice before this Court by Rule

1(b) of this Court's Rules of Admission and Practice); see also MacWhorter v. Derwinski, 2 Vet.App.

133, 135 (1992) ("counsel has an ethical obligation to correctly advise the Court of the facts and the

law" (citing MODEL RULE 3.3)), rescinded in part, 2 Vet.App. 655, appeal dismissed as moot on

other grounds, 3 Vet.App. 223 (1992) (per curiam). The Court expects that counsel will avoid

repetition of similar tactics in the future.

On consideration of the foregoing, it is

ORDERED that the Board's decision is AFFIRMED. The appeal as to CUE allegations

initially raised before this Court is DISMISSED.

DATED: July 20, 2000 PER CURIAM.

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