Michael Seri v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 04-1172

MICHAEL SERI, APPELLANT

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued May 24, 2007 Decided August 22, 2007 )

Kenneth M. Carpenter, of Topeka, Kansas, with whom Mark R. Lippman, of La Jolla,

California, was on the brief for the appellant.

Kenneth A. Walsh, with whom Tim S. McClain, General Counsel; R. Randall Campbell,

Assistant General Counsel; and Edward V. Cassidy, Jr., Deputy Assistant General Counsel, were

on the brief, all of Washington, D.C., for the appellee.

Before KASOLD, HAGEL, and MOORMAN, Judges.

MOORMAN, Judge, filed the opinion of the Court. KASOLD, Judge, filed a concurring

opinion.

MOORMAN, Judge: The appellant, Michael Seri, appeals an April 19, 2004, Board of

Veterans' Appeals (Board) decision that denied basic eligibility for educational benefits pursuant

to chapter 30 of title 38, U.S. Code, and denied extending his delimiting date for educational benefits

pursuant to chapter 34 of title 38, U.S. Code. Record (R.) at 1-7. Mr. Seri raises no argument with

the Board's decision on these issues. Rather, at issue is whether a statement made by the Board

regarding a December 1998 VA regional office (RO) decision that awarded service connection for

bipolar disorder and assigned a 30% disability rating, is a decision by the Board on an issue over

which the Board possessed jurisdiction–the finality of that 1998 RO decision. In the decision on

appeal, the Board commented that the December 1998 RO decision was a full grant of benefits

sought on appeal at that time, and thus determined that the appeal before it was limited to the

claims for educational assistance benefits noted above. On May 24, 2007, the parties presented oral

argument. As explained in this decision, the Court will modify the decision on appeal to remove

from that decision the Board comment on the finality of the December 1998 RO decision. The Court

will otherwise dismiss this appeal for lack of jurisdiction.

I. FACTS AND ARGUMENT

The appellant raises only one assertion of error on appeal: The Board erred in not

adjudicating a pending claim for a higher initial disability rating for his service-connected bipolar

disorder. Specifically, the appellant asserts that the RO erred in 1998 when it sua sponte withdrew

his Substantive Appeal to the Board after awarding service connection but assigning a disability

rating less than 100%. This argument stems from the following statement made by the Board in the

decision on appeal:

As a preliminary matter, the record reflects the veteran perfected an appeal to a claim

for service connection for a psychiatric disorder. In a December 1998 rating action,

the RO granted service connection for bipolar disorder and awarded a 30 percent

evaluation. As this action is considered a full grant of the benefit sought on appeal

with respect to that issue, the issues remaining on appeal are limited to those on the

title page.

R. at 2. The issues listed on the title page of the Board decision are "1. Entitlement to an extension

of the delimiting date for educational assistance benefits pursuant to [c]hapter 34, [t]itle 38, United

States Code. [and] 2. Basic eligibility for entitlement to educational assistance benefits pursuant to

[c]hapter 30, [t]itle 38, United States Code." R. at 1. In the decision on appeal, the Board denied

both claims for educational benefits, and the appellant has raised no argument regarding the denial

of these benefits. R. at 7.

The Court notes that the Board decision on appeal stems from an August 2000 claim for VA

educational benefits, completely separate from and unrelated to the 1998 RO decision which granted

service connection for bipolar disorder and awarded a 30% disability rating. The RO denied

Mr. Seri's claims for educational benefits in September 2000 because he did not have qualifying

service. R. at 71, 102. Throughout his appeal of his educational benefits claims, Mr. Seri did not

raise any issue relating to the December 1998 RO decision that awarded service connection for

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bipolar disorder. Specifically, the only issues raised in his Notice of Disagreement (NOD) were the

RO's denial of chapter 30 educational benefits, and the possible entitlement to an extension of his

delimiting date for his chapter 34 educational benefits. R. at 98. On December 4, 2002, the RO

issued a Statement of the Case (SOC), addressing only his claims for educational benefits. R. at

118-25. On December 16, 2002, Mr. Seri filed his Substantive Appeal, noting that he desired only

to appeal the issues listed on his SOC; those issues pertained only to his educational benefits. R. at

127. Finally, in testifying before a member of the Board, Mr. Seri confirmed that "the two issues

actually on appeal . . . or in appellate status are eligibility for extension of . . . [c]hapter 34 delimiting

date for educational benefits as well as eligibility for [c]hapter 30 benefits under the Montgomery

GI bill." R. at 135. At no time during his hearing did Mr. Seri address the finality of the 1998 RO

decision. Rather, it is clear from the record that the appellant expressly limited his appeal to the

educational benefits that the Board denied in the decision on appeal.

II. ANALYSIS

Pursuant to 38 U.S.C. § 7252, the Court's jurisdiction is limited to "review of decisions of

the Board of Veterans' Appeals." 38 U.S.C. § 7252(a). Our jurisdiction is "premised on and defined

by the Board's decision concerning the matter being appealed." See Ledford v. West, 136 F.3d 776,

779 (Fed. Cir. 1998). The United States Court of Appeals for the Federal Circuit, in Maggitt v.

West, 202 F.3d 1370, 1377 (Fed. Cir. 2000), clarified the holding in Ledford, explaining that a

claimant "must first present a request for a benefit to the Board, then receive a decision on that

request, in order to vest jurisdiction in the [U.S. Court of Appeals for Veterans Claims] to consider

the veteran's request and arguments in support thereof." Furthermore, in order to be considered a

final decision of the Board on a particular issue appealed, the Board decision shall include "an order

granting appropriate relief or denying relief." 38 U.S.C. § 7104(d)(2); see Maggitt, 202 F.3d at 1376

(construing a "decision of the Board" to mean " a decision with respect to the benefit sought by the

veteran: those benefits are either granted . . . or they are denied"); Kirkpatrick v. Nicholson, 417 F.3d

1361, 1365 (Fed. Cir. 2005) (noting that "'when the Board has not rendered a decision on a particular

issue, the court has no jurisdiction to consider it under section 7252(a)'" (quoting Howard v. Gober,

220 F.3d 1341, 1344 (Fed. Cir. 2000))); Rudd v. Nicholson, 20 Vet.App. 296, 300 (2006) (dismissing

appeal for lack of jurisdiction where no proper claim had been raised to the Board). Thus, absent

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a final Board decision on an issue over which the Board itself has jurisdiction (or absent Board error

in refusing to address an appeal presented to it, Mintz v. Brown, 6 Vet.App. 277, 281 (1994); see

Fenderson v. West, 12 Vet.App. 119, 132 (1999), or in referring, rather than remanding, a claim to

the RO, see Manlincon v. West, 12 Vet.App. 238, 240-41 (1999)), the Court is precluded from

exercising its jurisdiction over the matter.

In its decision, the Board included a statement unrelated to the claims for educational

benefits that had been appealed to the Board. The Board stated:

As a preliminary matter, the record reflects the veteran perfected an appeal to a claim

for service connection for a psychiatric disorder. In a December 1998 rating action,

the RO granted service connection for bipolar disorder and awarded a 30 percent

evaluation. As this action is considered a full grant of the benefit sought on appeal

with respect to that issue, the issues remaining on appeal are limited to those on the

title page.

R. at 2. The Board decision on appeal stems from an August 2000 claim for VA educational

benefits, completely separate from and unrelated to the 1998 RO decision which granted service

connection for bipolar disorder and awarded a 30% disability rating. The RO denied Mr. Seri's

claims for educational benefits in September 2000 because he did not have qualifying service. R. at

71, 102. Throughout his appeal of his educational benefits claims, Mr. Seri did not raise any issue

relating to the December 1998 RO decision that awarded service connection for bipolar disorder.

Specifically, the only issues raised in his NOD were the RO's denial of chapter 30 educational

benefits, and possible entitlement to an extension of his delimiting date for his chapter 34

educational benefits. R. at 98. On December 4, 2002, the RO issued an SOC, addressing only his

claims for educational benefits. R. at 118-25. On December 16, 2002, Mr. Seri filed his Substantive

Appeal, noting that he desired only to appeal the issues listed on his SOC; those issues pertained

only to his educational benefits. R. at 127. Finally, in testifying before a member of the Board, Mr.

Seri confirmed that "the two issues actually on appeal . . . or in appellate status are eligibility for

extension of . . . [c]hapter 34 delimiting date for educational benefits as well as eligibility for

[c]hapter 30 benefits under the Montgomery GI bill." R. at 135. At no time during his hearing did

Mr. Seri address the finality of the 1998 RO decision. Thus, the Board's statement cannot be

considered a "decision" on the issue because the record before the Board in this appeal did not raise

this issue (or any issue regarding Mr. Seri's service-connected psychiatric disability) to the RO or

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the Board in his appeal of his educational benefits.

It is clear from the record that the appellant expressly raised on appeal to the Board issues

pertaining only to the claim for educational benefits that the Board then denied in the decision on

appeal. Issues pertaining to the claim stream concerning VA benefits for a psychiatric disorder that

resulted in the December 1998 RO decision awarding service connection for bipolar disorder,

including the finality of that decision itself, were simply not before the Board. See Jarrell v.

Nicholson, 20 Vet.App. 326, 331 (2006). In Jarrell, the Court held, over the dissent of one judge,

subject to limited exceptions not relevant in Mr. Seri's case, that the Board is vested with jurisdiction

over a matter if a regional office has rendered a decision on the matter and the matter is then

"properly appealed to the Board." Id. Because the appeal before the Board in April 2004, when it

rendered the decision on appeal, did not concern the psychiatric disability claim, it was unnecessary

for the Board to discuss the finality of the December 1998 RO decision. The Board is "an appellate

tribunal" that should not be addressing matters not on appeal. Id. In the end, the finality of the

December 1998 RO decision question should not be addressed by the Court when that issue was not

properly before the Board.

In any event, in order to eliminate the possibility of any preclusive effect of the Board's

discussion of an issue beyond its jurisdiction, the Court modifies the Board decision on appeal to

remove the paragraph in which the Board commented on the finality of the 1998 RO decision. See

DiCarlo v. Nicholson, 20 Vet.App. 52, 57 (2006) (setting aside Board determination that was made

outside of the Board's proper review procedures for addressing the finality of a prior decision); see

also Ford v. Gober, 10 Vet.App. 531, 535-36 (1997); Degmetich v. Brown, 8 Vet.App. 208, 209

(1995), aff'd 104 F.3d 1328 (Fed. Cir. 1997). This action is consistent with the Secretary's

concession that the portion of the Board decision that we now order modified has "no res judicata

or collateral estoppel effect." Secretary's Second Memorandum of Law at 11.

Mr. Seri is not without recourse. As this Court held in DiCarlo, if the appellant desires a

decision on an alleged pending claim before VA, the appropriate course of action is to request that

VA render such a decision, and once VA renders that decision, pursue his appellate rights by filing

an appeal to the Board. Once a decision on that claim has been rendered by the Board, the appellant

may seek review of that decision by the Court, properly subjecting it to the Court's jurisdiction.

38 U.S.C. § 7252(a); DiCarlo, 20 Vet.App. at 57-58.

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Furthermore, the Court cannot construe the Board's isolated statement regarding the finality

of the December 1998 RO decision, which was unconnected with the claim on appeal, to be a

"decision" regarding the 1998 RO decision because of the context in which it was made. The

Board's statement is located in the "Introduction" section of the Board's decision and, as the

Secretary concedes, is merely an attempt to clarify that the issues properly on appeal consisted of

(1) the extension of Mr. Seri's delimiting date for chapter 34 educational benefits; and (2) eligibility

for chapter 30 benefits under the Montgomery GI bill. See R. at 1 (noting the issues listed on the

title page of the Board decision as "1. Entitlement to an extension of the delimiting date for

educational assistance benefits pursuant to [c]hapter 34, [t]itle 38, United States Code. [and] 2.

Basic eligibility for entitlement to educational assistance benefits pursuant to [c]hapter 30, [t]itle 38,

United States Code"); Secretary's Second Memorandum of Law at 11 ("Appellant is not adversely

affected by the Board's accurate historical notation, which was provided for informational purposes

only.").

In addition, the Board's decision lacks any "order granting appropriate relief or denying

relief" on the issue of the disability rating or the effective date for the appellant's service-connected

bipolar disorder. The Board's summary clarification of the issues before the Board cannot be

characterized as an exercise of jurisdiction over an issue not asserted as being on appeal to the

Board. Accordingly, the Board's statement regarding an issue on a claim that is not on appeal to the

Board and not otherwise supported by a clear exercise of the Board's jurisdiction cannot be

considered a final decision by the Board subject to review by this Court. See 38 U.S.C. § 7252 (a);

Kirkpatrick, Maggitt, and Ledford, all supra.

III. CONCLUSION

The April 19, 2004, Board decision is MODIFIED to remove the Board comment on the

finality of the December 1998 RO decision. Because Mr. Seri has abandoned any appeal as to the

educational-benefits claims actually decided by the Board in the decision on appeal, this appeal is

DISMISSED.

KASOLD, Judge, concurring: Mr. Seri acknowledges in his initial briefing that the U.S.

Court of Appeals for the Federal Circuit (Federal Circuit) has held that an NOD as to an RO decision

denying only service connection did not place into administrative appellate status the downstream

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elements of disability rating and effective date because these elements of a claim had not yet been

initially adjudicated. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober,

122 F.3d 1030 (Fed. Cir. 1997); see also Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998)

(claim for disability compensation benefits has five elements: (1) veteran status, (2) existence of

a disability, (3) a connection between the veteran's service and the disability, (4) degree of disability,

and (5) effective date of the disability). He recognizes that this Court is bound by these decisions,

see Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (holding that this Court is bound by Federal

Circuit precedent), but states that he intends to seek en banc review by the Federal Circuit (although

he presents no argument or explanation for why the Federal Circuit erred).

At oral argument, it was noted that the Federal Circuit rendered its decisions on this issue

when an NOD filed after November 18, 1988, was a predicate to the exercise of our jurisdiction.

See Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988); Skinner v. Derwinski, 1 Vet.App. 2,

3 (1990). It was further noted that this is no longer the case. See Pub. L. No. 107-103, § 603(a),

115 Stat. 976, 999 (2001) (repealing Pub. L. No. 100-687, § 402); Kelly v. Nicholson, 463 F.3d

1349, 1352 (Fed. Cir. 2006) (filing of NOD on or after November 18, 1988, is no longer a

prerequisite to the Court's exercise of its jurisdiction). Mr. Seri argued that Grantham and Barrera

were no longer applicable because of the change in law eliminating the requirement for a post-

November 18, 1988, NOD as a predicate for the exercise of our jurisdiction. I find no merit in either

the bald assertion that the Federal Circuit wrongly decided these cases, or in the argument that the

change in law with regard to the NOD as a predicate to our jurisdiction warrants our distinguishing

the decisions of the Federal Circuit such that they do not apply in this case.

Although Grantham and Barrera were rendered at a point in time when an NOD was a

jurisdictional predicate for this Court, the holdings in those cases – that an NOD placed into

administrative appellate status only those elements of a claim decided by the agency of original

jurisdiction – do not rest on the fact that a pre-1988 NOD was necessary to invoking our jurisdiction.

Rather, they rest on an interpretation of 38 U.S.C. § 7105 that an NOD is an expression of

disagreement with the initial adjudicative decision and on the recognition that a claim for service-

connected disability compensation benefits has five elements and that all elements may not be

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resolved in an initial decision.1 Specifically, the Federal Circuit stated that it "is clear that an agency

of original jurisdiction's (AOJ's) first decision regarding a claim for benefits might not resolve, or

even address, all necessary elements of the application for benefits," and further stated that it is

"only the second NOD that could, and did, initiate appellate review" as to any element of the claim

that had not been placed into appellate status by the first NOD. Grantham, 114 F.3d at 1158; see

also 38 U.S.C. § 7105(a)-(c); Barrera, 122 F.3d at 1034-40 (Plager, J., concurring) (explaining and

distinguishing Hamilton, which involved an NOD that placed the element of service connection into

appellate status that remained in appellate status until finally adjudicated by the Board); Grantham,

114 F.3d at 1159-61 (Archer, J., concurring) (explaining and distinguishing Hamilton).

In this instance, Mr. Seri filed an NOD with the initial 1995 decision of the RO that denied

his claim because his disability was not service connected. The 1995 RO decision made no

determination with regard to a disability rating or an effective date, and these elements of the claim

were not placed into administrative appeal to the Board. When, on remand from the Board, the 1998

RO decision awarded service connection, this constituted an award of full benefits with regard to

the element of Mr. Seri's claim that he had previously placed into appellate status. See Holland v.

Gober, 10 Vet.App. 433, 436 (1997) (applying Barrera and Grantham, and holding that an award

of service connection was "a full award of benefits on the appeal" initiated by an appeal of an RO

decision that denied service connection). Thus, Mr. Seri's contention that his NOD with the 1995

RO decision placed his entire claim in administrative appeal status and it remained there until the

2004 Board finally addressed it is without merit.

Under the circumstances of this case – where the 1998 RO decision was final, Mr. Seri did

not argue below for additional benefits related to his psychiatric disorder claim, the entire

proceedings before the Board addressed only the claim for educational benefits, Mr. Seri

acknowledged below that claims for these benefits were the only claims being adjudicated by the

Board, and the Board provided only one statement at the outset of its opinion noting that the

psychiatric disorder claim was no longer on appeal – the Board's statement regarding the psychiatric

1

Although these decisions interpret section 7105 in light of the provisions of Pub. L. No. 100-687, § 402, the

substantive holding of these cases is that only one NOD may be filed as to any given issue in a claim. See Barrera,

122 F.3d at 1038 (Plager, J., concurring). The premises upon which Barrera, Grantham, and Hamilton rely are left

unaffected by the repeal of § 402.

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disorder claim is viewed properly as simply a comment on the status of the claim and not a separate

decision on the claim bringing new life to what has been final since 1998. Inasmuch as the

psychiatric claim became final in 1998 and was not otherwise before the 2004 Board for appellate

adjudication (e.g., the record contains no request for revision under 38 U.S.C. § 5109A or claim to

reopen under 38 U.S.C. § 5108),2 it is not now properly before the Court. Compare Kirkpatrick v.

Nicholson, 417 F.3d 1361, 1365 (Fed. Cir. 2005) ("'when the Board has not rendered a decision on

a particular issue, the court has no jurisdiction to consider it under section 7252(a)'" (quoting

Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000))), and Rudd v. Nicholson, 20 Vet.App. 296,

300 (2006) (dismissing appeal for lack of jurisdiction where no proper claim had been raised to the

Board), with Ledford v. West, 136 F.3d 776, 779 (Fed. Cir.1998) (Court has jurisdiction over claims

explicitly addressed by Board in a final decision, referenced in an NOD, or otherwise reasonably

raised).

2

The Board has original jurisdiction under 38 U.S.C. § 7103(c) to review and correct the record for obvious

error; however, the Board's statement with regard to the psychiatric disorder claim contained no correction of obvious

error, thus demonstrating that it was not exercising its original jurisdiction to correct obvious error. See Jarrell v.

Nicholson, 20 Vet.App. 326, 331 n.4 (2006) (en banc) (Board has original jurisdiction to correct obvious error pursuant

to 38 U.S.C. § 7103(c)).

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