Glenn H. Jackson v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 03-322

GLENN H. JACKSON , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued May 19, 2005 Decided July 1, 2005 )

Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.

Rebecca Ahern Baird, with whom Tim S. McClain, General Counsel; R. Randall Campbell,

Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General Counsel, all of

Washington, D.C., were on the brief for the appellee.

Before HAGEL, LANCE, and DAVIS, Judges.

HAGEL, Judge: Before the Court is Glenn H. Jackson's appeal from a January 9, 2003,

Board of Veterans' Appeals (Board) decision in which the Board denied entitlement to an effective

date earlier than October 18, 2000, for a grant of service connection for a low-back disability.

Record (R.) at 7. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review

the January 2003 Board decision. For the following reasons, the Court will affirm the January 9,

2003, Board decision.

I. FACTS

Mr. Jackson served on active duty in the U.S. Army from June 1969 to December 1970. R. at

10. On September 10, 1996, he filed a claim to reopen his previously and finally disallowed claim

for service connection for a low-back disability. R. at 34-36. A VA regional office denied his claim

and, in a November 1998 decision, the Board did the same. R. at 41-42, 58-65. After this Court

affirmed the Board's decision, Mr. Jackson appealed to the U.S. Court of Appeals for the Federal

Circuit (Federal Circuit), which, in a September 2001 decision, affirmed the Court's decision. R. at

67-71, 124-31.

Prior to the issuance of the Federal Circuit's decision, Mr. Jackson, on October 17, 2000, had

submitted additional evidence to the regional office in an attempt to reopen his low-back-disability

claim. R. at 73-108. Based on that additional evidence, the regional office, in June 2001, reopened

and granted his claim for service connection and assigned that grant an effective date of October 18,

2000. R. at 120-22. Mr. Jackson appealed the regional office's decision to the Board, arguing that

the proper effective date should have been September 10, 1996, the date on which he filed his claim

to reopen. R. at 137-40, 163-67.

The Board, in the decision now on appeal, denied entitlement to an earlier effective date.

R. at 1-8. Although it acknowledged that under 38 C.F.R. § 3.156(b) (2002) new and material

evidence submitted prior to the issuance of an "appellate decision" must be considered as having

been filed in connection with the claim pending at the beginning of the appeal period, it determined

that the phrase "appellate decision" referred only "to a decision of the Board and not to a decision

by . . . the Federal Circuit." R. at 6. Therefore, it concluded that Mr. Jackson's additional evidence,

although submitted prior to the issuance of the Federal Circuit's September 2001 decision, could not

be considered as having been filed in conjunction with Mr. Jackson's September 10, 1996, claim to

reopen. Instead, it found that his submission of additional evidence was a second claim to reopen,

dated October 17, 2000. Id. This appeal followed.

On appeal, Mr. Jackson argues that the phrase "appellate decision" as used in § 3.156(b) can

mean a decision of the Federal Circuit and that the Board's interpretation is "impermissible" because

it is "narrow and restrictive." Appellant's Brief (Br.) at 8. He acknowledges that the phrase is not

defined in the regulation and notes that the Secretary has chosen not to define the phrase each of the

four times the regulation has been amended since the enactment of the Veterans' Judicial Review

Act, Pub. L. No. 100-687, § 301, 102 Stat. 4105, 4113-21 (1988). Id. at 7. At oral argument, Mr.

Jackson conceded that "appellate decision" is not used elsewhere in title 38, Code of Federal

Regulations, to refer to a decision of the Federal Circuit. The Secretary argues that the Board's

interpretation is correct and that it is the only interpretation that is consistent with VA's regulatory

framework. Secretary's Br. at 9-12.

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II. ANALYSIS

Section 3.156(b) of title 38, Code of Federal Regulations, provides:

New and material evidence received prior to the expiration of the appeal period, or

prior to the appellate decision if a timely appeal has been filed (including evidence

received prior to an appellate decision and referred to the agency of original

jurisdiction by the Board . . . without consideration in that decision in accordance

with the provisions of § 20.1304 of this chapter), will be considered as having been

filed in connection with the claim which was pending at the beginning of the appeal

period.

38 C.F.R. § 3.156(b) (2004); see Meuhl v. West, 13 Vet.App. 159, 160 (1999). That language, in

pertinent part, has remained unchanged since the regulation was promulgated by the Secretary in

1961. At the time it was promulgated, the only appeal available within the veterans benefits system

was an appeal to the Board. See 26 Fed. Reg. 1561, 1570-71 (Feb. 24, 1961); see also 27 Fed. Reg.

11,886, 11,887 (Dec. 1, 1962). In 1988, when Congress enacted the Veterans' Judicial Review Act,

judicial review of Board decisions by this Court and of this Court's decisions by the Federal Circuit

became available. Section 3.156 was amended four times after the enactment of the Veterans'

Judicial Review Act, but the phrase "appellate decision" was not defined in any of those

amendments. See 55 Fed. Reg. 20,144 (May 15, 1990); 55 Fed. Reg. 52,274 (Dec. 21, 1990); 58

Fed. Reg. 32,442 (June 10, 1993); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001). Today, the phrase

"appellate decision" is still not defined in § 3.156(b) or in any other part of title 38, Code of Federal

Regulations.

What the regulation addresses and what we must determine is the following: When an

appellant submits evidence regarding a previously submitted claim, how much time may pass before

that evidence is no longer considered to have been filed along with the claim? In the instant case,

under Mr. Jackson's broad interpretation of the phrase "appellate decision," the time period during

which submitted evidence would have been considered as having been filed in connection with his

September 1996 claim to reopen extended up until the issuance of the Federal Circuit's September

2001 decision. Under the Secretary's more narrow interpretation, that period lapsed in November

1998, when the Board issued its decision denying the claim to reopen. Because the correct

interpretation of a regulation is a question of law, the Court will review the Board's interpretation

of § 3.156(b) de novo. See Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003); Hatch v.

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Principi, 18 Vet.App. 527, 531 (2004). Accordingly, to the extent that Mr. Jackson would instead

have us defer to an asserted VA policy of interpreting the phrase "appellate decision" to encompass

a Federal Circuit decision, we decline. In any event, he has provided no persuasive evidence that

VA has ever had such a policy. Although he cites to the circumstances surrounding the appeal in

Thayer v. Principi, 15 Vet.App. 204 (2001), for that proposition, there is nothing in the facts or

history of that case that establishes that VA's determination of an earlier effective date was dictated

by any policy pertaining to the application of § 3.156(b). See Thayer, 15 Vet.App. at 205, 207

(specifically declining to address § 3.156(b)).

The starting point in interpreting a regulation is its language. See Otero-Castro v. Principi,

16 Vet.App. 375, 380 (2002) ("The basic principles that apply to construing statutes apply equally

to construing regulations."). If the meaning of the regulation is clear from its language, then that is

"the end of the matter." Brown v. Gardner, 513 U.S. 115, 120 (1994).

At the time that § 3.156(b) was promulgated, the phrase "appellate decision" could have

meant only a Board decision because that was the only appellate decision available within the

veterans benefits system at that time. Mr. Jackson argues that the meaning of that phrase has

implicitly evolved over time. Certainly, he is correct that today the phrase "appellate decision" read

in isolation could properly encompass a decision of the Federal Circuit. To be sure, the Federal

Circuit is an appellate court, and it does issue decisions. However, as the Supreme Court of the

United States has held, "[a]mbiguity is a creature not of definitional possibilities but of statutory [or

regulatory] context." Brown, 513 U.S. at 118. Accordingly, we will examine § 3.156(b) in its

regulatory and statutory context to aid us in shaping the meaning of the phrase "appellate decision."

First, we must consider which interpretation of the phrase "appellate decision" best fits within

the VA regulatory scheme. See Otero-Castro, 16 Vet.App. at 380 (holding that each part or section

of a regulation "'should be construed in connection with every other part or section so as to produce

a harmonious whole'") (citations omitted); see also Brown, 513 U.S. at 118 ("There is a presumption

that a given term is used to mean the same thing throughout a statute."). Upon review, we find that

the Secretary uses the phrase consistently throughout title 38 to refer to a Board decision only; at oral

argument, Mr. Jackson conceded as much. See 38 C.F.R. §§ 19.9, 20.401, 20.904, 20.1000,

20.1104-05, 20.1201, 20.1301, 20.1304 (2004). Therefore, the Secretary's interpretation would be

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harmonious with the rest of title 38 while Mr. Jackson's interpretation would result in an anomaly.

Given such a choice, we select the harmonious interpretation. See Ostero-Castro, 16 Vet.App. at

380. Underlying this selection is the premise that the Secretary, aware of his own regulations, knows

that the phrase "appellate decision" is used to mean a Board decision and that if he intended to refer

to more than just a Board decision, he would have consciously and purposely used a different phrase.

For example, 38 C.F.R. § 14.507 (2004) provides that a VA General Counsel opinion is binding on

VA officials and employees unless, among other things, it has been overruled or modified by a

subsequent "judicial decision." (Emphasis added).

Second, we must consider which interpretation of the phrase "appellate decision" best fits

within the statutory scheme. Under the statutory provision governing the jurisdiction of the Board,

38 U.S.C. § 7104(b), "when a claim is disallowed by the Board, the claim may not thereafter be

reopened and allowed" unless new and material evidence is submitted to reopen it. It follows that

once the Board disallows a claim, the Board's decision is final, and absent a disruption of that

finality, any evidence submitted after the Board's decision with respect to that claim will be

considered to be an attempt to reopen the disallowed claim based on new and material evidence. See

id.; Sears v. Principi, 16 Vet.App. 244, 248 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). Under

38 U.S.C. § 5110(a), "the effective date of an award based on . . . a claim reopened after final

adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the

date of receipt of application therefor."

In the instant case, Mr. Jackson submitted new and material evidence in 2000, after the Board

had disallowed his claim for service connection for a low-back disability and after the Board had

disallowed his 1996 claim to reopen his service-connection claim. Under the principle that follows

from section 7104(b), his submission constituted a new claim to reopen, and because that claim led

to an award of service connection, the effective date of that award would be governed by section

5110 and could have been no earlier than 2000. The Secretary's interpretation of § 3.156(b)

comports with the statute, but Mr. Jackson's interpretation does not. Under Mr. Jackson's

interpretation, § 3.156(b) would operate to assign him an effective date in 1996, the year in which

he submitted his first claim to reopen. Although the Secretary in promulgating § 3.156(b) was, as

Mr. Jackson asserts, creating a generous regulation, it is plain that the Secretary can be no more

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generous than the statute allows him to be. Accordingly, the phrase "appellate decision" can clearly

not mean anything other than a decision of the Board.

In sum, the meaning of § 3.156(b), including the phrase "appellate decision," is clear from

its context. "Appellate decision," as that phrase is used in § 3.156(b), means a decision only of the

Board, and as a result, § 3.156(b) provides that the issuance of a Board decision closes the period

of time during which evidence submitted after the filing of a claim will be considered as having been

filed along with that claim. To read that phrase as having evolved over time would be to read it as

having evolved out of context and in conflict with the statute. We decline to interpret § 3.156(b) in

such a way. Therefore, because we hold that the language of the regulation is clear and not

ambiguous, that is "the end of the matter." Brown, 513 U.S. at 120.

Consequently, when Mr. Jackson submitted additional evidence in October 2000, almost two

years after the Board denied his September 1996 claim to reopen, that evidence should not have been

considered as having been filed in connection with the September 1996 claim to reopen. Instead,

it should have been considered, as it was, as a new claim to reopen. Accordingly, we conclude that

the Board correctly determined that the proper effective date of Mr. Jackson's award of service

connection is in October 2000. See 38 U.S.C. § 5110.

III. CONCLUSION

On consideration of the foregoing, the January 9, 2003, Board decision is AFFIRMED.

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