Theodore L. Bissonnette, Jr. v. Anthony J. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 01-1322

THEODORE L. BISSONNETTE, JR., APPELLANT ,

v.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE

On Appeal from the Board of Veterans' Appeals

(Decided June 15, 2004 )

Kenneth M. Carpenter, of Topeka, Kansas, was on the brief for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Carolyn

F. Washington, Deputy Assistant General Counsel; and Robert W. Legg, all of Washington, D.C.,

were on the brief for the appellee.

Before IVERS, STEINBERG, and GREENE, Judges.

STEINBERG, Judge: The appellant, through counsel, seeks review of an April 6, 2001,

Board of Veterans' Appeals (Board or BVA) decision that dismissed for lack of jurisdiction under

the doctrine of res judicata his claim for an effective date earlier than May 27, 1993, for an award

of Department of Veterans Affairs (VA) service connection for a seizure disorder; that claim

included the issue whether a Notice of Disagreement (NOD) was filed as to a January 1968 VA

regional office (RO) decision denying service connection for a seizure disorder. Record (R.) at 1.

The appellant and the Secretary each filed a brief, and the appellant filed a reply brief. This appeal

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

reasons that follow, the Court will affirm the Board decision.

I. Relevant Background

The veteran served honorably on active duty in the U.S. Army from September 1964 until

November 1967, including service in Vietnam. R. at 11. Upon his entry into service, he had no

history of epilepsy. R. at 15-16. Beginning in December 1965, his service medical records indicate

that on several occasions he experienced blackout spells and reported seizures. See, e.g., R. at 24,

28, 49, 37, 40, 46, 52, 60. Two days before the veteran's discharge, a VA examining physician

completed a physical profile record on the veteran and listed as a defect the veteran's "[s]eizure

disorder ([e]pilepsy)". R. at 52.

In November 1967, the veteran filed with a VARO a claim for service connection for

epilepsy, which, he stated, had "[s]tarted during the middle of 1966 while in Vietnam." R. at 90.

In January 1968, the VARO sent a letter to the veteran stating that because he had failed to report

for a scheduled examination, the RO had denied his claim; the letter also stated:

No further action will be taken unless you inform us of your

willingness to report for examination by signing the statement below

and returning this letter to us. Upon receipt of such notification, an

examination will be re[]scheduled and your claim will be

reconsidered when the examination is complete.

R. at 93. On January 23, 1968, the RO received from the veteran a letter, which stated: "I received

your letter today telling me my claim has been denied. I really don't think you have the right to do

so." R. at 95. The veteran then explained why he did not report for examinations and asked: "So

Sir if it is possible could it be arrange[d] for me to reopen my claim [and] take the physical exam

here at Fort Riley." R. at 96. Also in January 1968, the RO replied that there were no facilities at

Fort Riley for an examination and informed the veteran that he should notify the RO if he was able

to report "to the VA for an examination at some future date" (R. at 99); in July 1968, the veteran

submitted a statement that he was "willing to report for examination for compensation purposes at

any time" (R. at 101). In a September 1968 VA examination report, the examining physician during

a "special neurologic examination" recorded as a diagnosis "[c]onvulsive disorder, grand mal type",

and the examining physician for the "general medical examination" recorded that "[d]iagnoses are

pending laboratory work" and listed as his diagnosis "[h]istory of convulsive disorder, grand mal

type". R. at 106-07 (emphasis added). In December 1968, the RO sent to the veteran a letter stating

that he had been scheduled for "a period of hospital observation and examination to determine the

extent of [his] disability" but because he did not report for that examination, the RO would "tak[e]

no further action in [his] claim . . . until such time [as he was] willing to report for the hospital

observation and examination." R. at 114.

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In May 1971, the veteran filed, through a representative, "an informal claim for

reconsideration of compensation benefits." R. at 116. A partially illegible copy of a VA hospital

summary reveals that the veteran was admitted for four days for observation and tests in

August 1971, but that he had left the hospital apparently before the VA physicians finished a

diagnosis; it also appears from the record that he stated that he would prefer to undergo further tests

as an outpatient so that he could return to his business at his home. R. at 119. In October 1971, the

RO sent to the veteran a letter (1) stating that he had "left the hospital before [his] tests and

evaluations could be competed in August 1971", (2) advising him that in order for the RO to process

his application, he needed to undergo "an observation and evaluation examination", and

(3) requesting that he respond to them within 60 days regarding whether he was "ready, willing, and

able to report and remain in the hospital until such examination can be performed." R. at 122. There

is no evidence in the record that the appellant ever responded to this letter. See R. at 1-398.

In May 1993, the veteran filed, through a representative, an "informal" claim for service

connection for his seizure disorder (R. at 124); he filed a formal claim in May 1994 (R. at 127-28).

In October 1994, the RO, inter alia, granted service connection for his "seizure disorder" and

awarded a rating of 80% for that disability, effective from May 27, 1993, the date of his informal

claim. R. at 195-97. The veteran submitted to the RO a "Request for Readjudication", stating that

the RO erroneously had failed to adjudicate his claim in 1967 and that, thus, that claim was still

pending. R. at 205-06. The RO responded in December 1994 that, in January 1968, it had

administratively denied his November 1967 claim because he had failed to report for an examination.

R. at 209. On appeal to the Board for an earlier effective date (EED) for his 80% seizure-disorder

rating (R. at 230 (Substantive Appeal), 274 (Certification of Appeal), 282-83 (written submission

in support of appeal requesting effective date as of date of discharge), the Board in November 1996

denied an effective date before May 27, 1993, because it determined that the veteran had abandoned

his November 1967 and October 1971 claims by his failure to report for examinations, within the

one-year period following the RO's requests, and that there was thus no prior claim upon which he

could be awarded an EED (R. at 292-95). The veteran then appealed to this Court; in a March 1998

single-judge memorandum decision, the Court, inter alia, held as to the November 1967 and

May 1971 seizure-disorder claims that (1) pursuant to 38 C.F.R. § 3.158(a) there was "a plausible

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basis for the Board's finding that the appellant had abandoned those earlier claims by not reporting

for his examinations" and (2) there was "a plausible basis for the Board's conclusion that the

appellant was not entitled to an effective date earlier than May 27, 1993," for his service-connected

seizure disorder. Bissonnette v. West, No. 96-1751, 1998 WL 136888, at *4 (Vet. App. Mar. 20,

1998) (Bissonnette I).

In September 1998, the veteran filed, inter alia, with the RO a "claim that the [RO] failed to

submit a Statement of the Case [(SOC) as] to his [NOD]" filed in January 1968. R. at 309-10. In

a June 1999 SOC, the RO stated that no timely NOD was filed as to the January 1968 letter denying

the veteran's original claim for service connection. R. at 334-35. Specifically, the RO determined:

The veteran's letter, received January 23, 1968, did express some

disagreement with the VA decision to deny his claim. The

disagreement was specific as to the requirement for an examination.

This requirement was explained to the veteran and he agreed to report

for the examination. The portion of the decision with [sic] which the

veteran questioned was addressed and the veteran was apparently

satisfied as he agreed to report for the VA examination. Although the

letter did express some disagreement with the prior decision, it can

not be reasonabl[y] construed, based on the letter and subsequent

events, that the veteran desired appellate review.

R. at 335. Following the veteran's August 1999 submission of a Substantive Appeal (R. at 338-55),

the RO issued another decision in September 1999; the RO found that the veteran's claim "for service

connection for a seizure disorder, initially received [on November 9, 1967,] and reopened [on]

July 16, 1968, is considered to be abandoned" because he failed to report for the required

examination within one year after notice of the request (R. at 357-58). In making that determination,

the RO stated that any argument that the veteran's January 1968 letter constituted a claim to reopen

that must now be adjudicated is moot because "the veteran's claim was considered by VA to be

formally reopened by his written statement, received in July of 1968, when he reported he was

willing to report for VA examination." R. at 358.

In March 2000, after submitting to the Board a memo of additional argument in support of

his claim (R. at 371-79), the veteran also submitted, inter alia, to the RO a "formal claim" regarding

the RO's "failure to adjudicate a claim for service[-]connected disability" from November 1967 (R. at

382-85). A few days later, also in March 2000, the appellant then submitted to the RO a document,

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entitled "Notice of Disagreement", which asserted that, although the RO conceded in its

September 1999 decision that his July 1968 letter served as a claim to reopen his abandoned 1967

claim, the RO never issued a "[d]ecision with an appropriate notice of his appellate rights" as to that

July 1968 claim, and it thus remained open. R. at 388-91. In the Board decision here on appeal, the

Board summarized as follows the veteran's four arguments in support of his assertion that his

November 1967 claim was unadjudicated: (1) The veteran's January 1968 letter to the RO was an

NOD and the RO never issued an SOC in response; (2) the RO failed to inform the veteran in its

January 1968 letter denying his service-connection claim that he had one year to report for the exam;

(3) the RO erroneously denied the veteran's claim in January 1968, rather than simply "'labeling it

as potentially abandoned'"; and (4) the RO's January 1968 letter denying his claim did not advise the

veteran of his appellate rights. R. at 6. The Board also noted that the veteran had asserted that his

September 1968 examination constituted an informal claim to reopen. Ibid. The Board declined to

reach those arguments because it determined that they were "foreclosed under the doctrine of res

judicata"; the Board reasoned:

In its March 1998 decision, the Court found that the claim [for]

service connection for a seizure disorder was adjudicated by the RO

in January 1968, and that the claim was denied based on the veteran's

failure to report for scheduled VA examinations. The Court also

found that the veteran's claim for entitlement to service connection

for a seizure disorder was abandoned based on his repeated failure to

report for scheduled examinations. . . .

Accordingly, the Court decision dated in March 1998[] found that the

veteran's claim [for] service connection received in 1967 was

adjudicated and abandoned. In so finding, the argument . . . that the

veteran's claim . . . was never finally adjudicated is barred by the

doctrine of res judicata. Hence, the Board is without jurisdiction to

find otherwise.

R. at 6-7 (citing 38 U.S.C. § 7104 and Morris v. Derwinski, 1 Vet.App. 260 (1991)). The Board then

dismissed the veteran's claim for an EED, to include the issue whether an NOD as to the

January 1968 RO decision was timely filed. R. at 7.

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II. Contentions on Appeal

As a preliminary matter, the Court notes that, as the appellant concedes, he expressly

withdrew (in his August 1999 Substantive Appeal (R. at 341)) his claim of clear and unmistakable

error (CUE) in the January 1968 RO decision denying his original claim for service connection.

Dec. 2002 Response at 3-5 (noting "error" by counsel for appellant and apologizing for

characterizing, in response to Secretary's motion to dismiss, claim as CUE claim); see Bissonnette

v. Principi, No. 01-1322, 2002 WL 31513330, at *2 (Vet. App. Nov. 12, 2002) (ordering, inter alia,

appellant to show cause why Board decision concluding that it had no jurisdiction over CUE claim

should not be affirmed). Thus, the now-withdrawn CUE claim is not part of the instant appeal.

In his principal brief, the appellant first argues that the Board incorrectly applied the doctrine

of res judicata. Brief (Br.) 7-11. He asserts that the "theory of entitlement to an [EED]" before the

Court in March 1998 was solely that he had not abandoned his claim, and that the Court's holding

was only that "the original claim of November 1967 was final due to the abandonment of that claim

by the [a]ppellant." Br. at 8-9. On that basis, the appellant concludes that res judicata applies only

to the legal determination regarding abandonment but not to the question of law whether the

appellant's January 1968 letter was an NOD. Br. at 9. The appellant cites the four elements

identified in Neves v. Brown, 6 Vet.App. 177, 179 (1993), that render a claim barred under res

judicata and concedes that all requirements are met except that the instant case does not involve the

same claim as the first; instead, he contends that whether his January 1968 letter is an NOD "does

not involve the same claim." Br. at 10-11 (citing Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002),

for proposition that "the [a]ppellant can present alternative theories of CUE at any time under

38 U.S.C. § 5109A"). Having asserted that his current claim is not precluded on the basis of res

judicata, the appellant then argues (1) that his January 1968 letter was, in fact, an NOD, as to which

the RO issued no SOC (Br. at 11-15) and (2) that the BVA violated 38 U.S.C. § 7104(a) by not

remanding the claims to the RO for the issuance of an SOC in response to his March 2000 NOD as

to the September 1999 RO decision (Br. at 15-18).

In response, the Secretary counters that the April 2001 BVA decision dismissing the

appellant's claim "reflected a solid appreciation of the facts and applicable law and should be

affirmed." Br. at 5 (citing Trilles v. West, 13 Vet.App. 314, 321 (2000) (en banc)). With respect to

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res judicata, the Secretary criticizes the appellant's citation to Andre, supra, and argues that that case

is distinguishable from the instant case because (1) Andre involved a CUE claim; (2) Andre dealt

with whether the issue there had been adjudicated by the Board, whereas the instant case deals with

whether the claim has already been decided by this Court, a higher tribunal; and (3) in Andre, the

U.S. Court of Appeals for the Federal Circuit held that each specific allegation of CUE is a new

claim, whereas here the appellant is raising "the same claim, albeit with a different twist to his

already adjudicated argument as to the finality of the 1968 RO decision, using evidence previously

considered by the Court in 1998." Br. at 8. The Secretary also asserts that the appellant "had a fair

opportunity to raise this specific argument to the Board and Court in his appeal for an [EED] at [the

time of his prior appeal]" that resulted in the Court's March 1998 decision. Br. at 9 (citing McDowell

v. Brown, 5 Vet.App. 401, 405 (1993)). The Secretary contends that whether the veteran's

January 1968 letter was an NOD is precluded as res judicata in light of the Court's prior ruling

regarding the finality of the January 1968 RO decision, and he thus declines to address the merits

of that argument. Br. at 9-10. Regarding the appellant's argument that the Board failed to require

the RO to issue an SOC as to the appellant's March 2000 NOD, the Secretary asserts that the

appellant's "'claim' for adjudication of an informal claim in 1999 was not a separate claim, but rather

a separate theory of entitlement to an [EED]." Br. at 11 (citing Andre, 301 F.3d at 1361).

In his reply brief, the appellant agrees with the Secretary that his current claim for an EED

is the same claim as the claim denied by the Board in November 1996, but argues that the "theory

of entitlement" to the EED claim he is currently pursuing is different from the prior theory; he

contests the Secretary's interpretation of Andre, supra, a case that he claims supports his

interpretation and entitles him to an adjudication on the current theory. Reply at 2-5. As to the

Secretary's assertion that the appellant had a prior opportunity to raise this argument to the Board and

the Court, the appellant states that "[t]here does not exist any compulsory joinder of all theories of

entitlement . . . in VA law" and that "[t]here is no bar to a claimant, after being unsuccessful in one

theory, to thereafter present to the Secretary an alternative theory of non[]finality, not previously

presented and considered by the Secretary." Reply at 5-6. The appellant has also filed a notice of

supplemental authority notifying the Court of a case decided by the U.S. Court of Appeals for the

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Ninth Circuit, Littlejohn v. United States, 321 F.3d 915 (9th Cir. 2003), after briefing was complete

here.

III. Analysis

Res judicata is a judicially created doctrine that determines the effect of prior judgments on

parties in subsequent adjudications. GENE R. SHREVE & PETER RAVEN -HANSEN , UNDERSTANDING

CIVIL PROCEDURE § 106 (2d ed. 1994). The doctrine has long included two subdoctrines, one of

which was historically called "res judicata" and more recently has been termed "claim preclusion",

and the other which was historically called "collateral estoppel" and more recently has been termed

"issue preclusion"; res judicata deals with "how a judgment can foreclose subsequent opportunities

to bring a claim or cause of action" and collateral estoppel deals with "how a judgment can prevent

relitigation of an issue of fact or law." Ibid.; see also Strott v. Derwinski, 1 Vet.App. 114, 117

(1991). In Neves, this Court outlined the four requisite elements for a claim to be barred by claim

preclusion:

(1) [T]he Court's prior decision must be a valid and final judgment;

(2) the latter suit must involve the same claim or cause of action

litigated in the first suit; (3) the decision in the original action must

have been on the merits; and (4) the same parties must be involved in

both cases.

Neves, supra.

The parties each assert that elements (1), (3), and (4) are met in the instant case, and the

Court agrees. Ibid. Specifically, Bissonnette I, supra, was a valid and final judgment involving Mr.

Bissonnette and the Secretary, and it was rendered "on the merits" – that is, "on the substance of the

claim advanced", because the EED claim was denied, Semtek Int'l, Inc. v. Lockheed Martin Corp.,

531 U.S. 497, 501-02 (2001) (quoting RESTATEMENT (SECOND ) OF JUDGMENTS § 19, cmt. a (1980)),

and stating that in every jurisdiction "on the merits" denotes decision "that actually 'passes directly

on the substance of [a particular] claim'" and is "the meaning intended in those many statements to

the effect that a judgment 'on the merits' triggers the doctrine of res judicata or claim preclusion").

See Neves, supra. The parties appear to disagree, however, over whether the instant appeal

"involve[s] the same claim" as Bissonnette I; the appellant asserts both (1) that whether his January

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1968 letter is an NOD "does not involve the same claim" as did the March 1998 decision (Br. at

10-11) and (2) that the Secretary's "assertion that these claims are the same . . . is correct [but that]

it is incorrect that the theory of entitlement to an [EED] is the same theory previously made [sic]

by the [a]ppellant" (Reply at 2). We reject the appellant's first argument because both the claim

before the Court in March 1998 and the claim now on appeal were for an "effective date earlier than

May 27, 1993, for the grant of service connection for a seizure disorder." Compare Bissonnette I,

2002 WL 31513330, at *1, and R. at 286, with R. at 1. Moreover, the appellant's reliance on Andre

for his assertion is not persuasive; Andre stated that "each 'specific' assertion of CUE constitutes a

[separate] claim", and, as the Secretary contends, now that the appellant has withdrawn his CUE

claim, that statement has no bearing on the instant appeal. Andre, 301 F. 3d at 1361 (stating that

"[o]ur decision turns on the fact that Mr. Andre's case involves CUE claims").

As to the appellant's second argument, he asserts that he is not barred "in VA law" from

presenting an additional theory with respect to a previously litigated claim. Reply at 5-6. That

contention is directly refuted by this Court's caselaw; specifically, in McDowell, this Court held that

claim preclusion applies to "further claims by the parties or their privies based on the same cause of

action, including the issues actually litigated and determined in that suit, as well as those which

might have been litigated or adjudicated therein." McDowell, 5 Vet.App. at 405 (emphasis added)

(citing Lawlor v. Nat'l Screen Serv. Corp., 349 U.S. 322, 325-26 (1955)); see also Federated Dep't

Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) ("[a] final judgment on the merits of an action

precludes the parties or their privies from relitigating issues that were or could have been raised in

that action" (emphasis added)); Comm'r v. Sunnen, 333 U.S. 591 (1948); cf. Smith (Barbara) v.

Derwinski, 1 Vet.App. 267, 277 (1991) (quoting Williams v. North Carolina, 325 U.S. 226, 233-34

(1945), for proposition that res judicata includes issues in a claim that claimant "permitted . . . to

pass without objection"). The Court also stated in Hamilton (Stanley) v. Brown:

"The remaining question is simply whether respondents having failed

to raise the question in the proceeding to which they were parties and

in which they could have raised it and had it finally determined, were

privileged to remain quiet and raise it in a subsequent suit. Such a

view is contrary to the well-settled principle that res judicata may be

pleaded as a bar, not only as respects matters actually presented to

sustain or defeat the right asserted in the earlier proceeding, 'but also

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as respects any other available matter which might have been

presented to that end'."

Hamilton, 4 Vet.App. 528, 539 (1993) (en banc) (emphasis added in Hamilton) (quoting Chicot

County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378 (1940)).

In essence, the res judicata precedent ensures that a litigant may have his or her day in Court,

but not two or three. The appellant previously had his day in this Court to argue that he is entitled

to an effective date earlier than May 27, 1993; his original EED claim was denied by the Board in

November 1996 in the context of the Board's finding that he had abandoned November 1967 and

May 1971 claims by failing to report for examination (R. at 292-95), and he cannot now assert an

EED based on a contention that he filed an NOD as to the RO's denial of that November 1967 claim.

See Federated Dep't Stores, McDowell, and Hamilton, all supra; cf. Costantino v. West, 12 Vet.App.

517, 521 (1999) (refusing to hear arguments raised for first time in appellant's reply brief);

Henderson v. West, 12 Vet.App. 11, 18-19 (1998) (same); Carbino v. Gober, 10 Vet.App. 507, 511

(1997) (same), aff'd, 168 F.3d 32, 34 (Fed. Cir.1999) (stating that "cogent reasons for not permitting

an appellant to raise issues or arguments in a reply brief" include "unfairness to the appellee who

does not have an opportunity to respond and the added burden on the court that a contrary practice

would entail"). The latter argument should have been raised in the prior litigation, and the Court,

having heard and decided that claim, cannot reopen its doors to hear an argument that could have

been raised the first time. Again, the appellant's Andre arguments are unavailing in this regard both

(1) because Andre dealt with CUE claims, which require specific pleadings by a claimant, see Fugo

v. Brown, 6 Vet.App. 40, 44 (1993), and (2) because the instant case involves the preclusive effect

of a prior judicial decision, whereas Andre involved specific issues not raised before the department

in an underlying CUE adjudication. See Andre, supra. Finally, because the appellant had a "'full and

fair opportunity'" to litigate his claim, there are no due-process concerns that would render

inapplicable res judicata to the instant claim. Kremer v. Chem. Const. Corp., 456 U.S. 461, 480-81

(1982) (citations omitted). The Court has considered the appellant's supplemental notice with regard

to Littlejohn, supra, and does not find that that case persuasively undercuts the res-judicata authority

addressed above.

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IV. Conclusion

On the basis of the above analysis, the record on appeal, and the parties' pleadings, the Court

holds that the appellant has not demonstrated that the Board committed error in dismissing based on

res judicata the appellant's claim for an EED for the award of service connection for his seizure

disorder. Accordingly, the April 6, 2001, Board decision is affirmed.

AFFIRMED.

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