Ivan R. Sellers v. Eric K. Shinseki
2012 U.S. Vet. App. LEXIS 1282
| Vet. App. | 2012Background
- Sellers appeals an April 2, 2008 BVA decision denying CUE in the July 14, 1988 rating decision and denying an earlier effective date for RP.
- A June 1, 2004 rating decision found CUE in the July 1988 decision and assigned a March 25, 1988 effective date, but the June 2004 decision was later found to be an authentic but draft decision.
- The Houston RO's January 31, 2005 decision granted service connection for RP retroactive to February 5, 2004 but denied CUE in the July 1988 decision.
- Sellers challenged the 1988 decision as clearly erroneous and pursued review of the June 2004 decision, with a limited remand focusing on its authenticity and procedural status.
- The Court ultimately held the June 2004 decision binding and voided the January 2005 decision ab initio, remanding for proper implementation of the June 2004 award.
- The opinion discusses 3.103 protections, the EAP, and the Purple Heart framework as they relate to the adjudicative process and the veteran’s right to participate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the June 2004 RO decision was binding on VA | Sellers contends the June 2004 decision was binding and valid. | The Secretary argues it was provisional/draft and not binding without proper notice. | June 2004 decision binding; January 2005 void ab initio. |
| Whether the Board lacked jurisdiction to review the January 2005 decision | Because the June 2004 decision bound VA, the January 2005 decision was not validly promulgated. | Board had jurisdiction to review the January 2005 decision notwithstanding the June 2004 decision. | Board’s April 2008 decision set aside; January 2005 decision void ab initio. |
| Whether VA violated 38 C.F.R. § 3.103 and related notice procedures in revising the June 2004 decision | VA deprived Sellers of participation and notice in the revision process under Purple Heart/Macklem | Revision complied with procedures and notices were adequate. | Procedural rights violated; January 2005 decision void ab initio; remand required. |
| Whether RP could be service-connected notwithstanding the historical CDA presumption | RP manifested in service; preexisting hereditary presumption should not defeat soundness. | RP presumed congenital/hereditary and not aggravated absent proof. | RP service-connected with favorable outcome; need for proper adjustment consistent with soundness presumption. |
Key Cases Cited
- Purple Heart v. Secretary of Veterans Affairs, 580 F.3d 1293 (Fed.Cir. 2009) (EAP invalid; veterans' right to participate in revision proceedings protected)
- MacKlem v. Shinseki, 24 Vet.App. 63 (2010) (EAP-like revisions void; remedy is to place veteran in favorable position)
- Jarrell v. Nicholson, 20 Vet.App. 326 (2006) (jurisdictional limits; Board acts only on binding RO decisions)
- Ashley v. Derwinski, 2 Vet.App. 62 (1992) (notice and receipt issues cured by actual receipt of decision)
- Brown v. Brown, 5 Vet.App. 413 (1993) (ultra vires actions treated as never taken; finality concerns)