Antonio Pacheco v. Sloan D. GibsonAntonio Pacheco v. Sloan D. Gibson
Lead Opinion
Wоrld War II veteran Antonio Pacheco appeals through counsel
For the reasons discussed below, we hold that § 3.157(b) is ambiguous and deference to the Secretary’s interpretation of this regulation is warranted. We also, however, exercise our discretion to remand the matter for the Board to address in the first instance a possible earlier effective date for Mr. Pacheco’s benefits under § 3.156(c). See Maggitt v. West,
I. BACKGROUND
Mr. Pacheco served honorably on active duty in the U.S. Army from January 1942 to November 1945. He reports that, during combat service in 1942 in the Pacific Theater, he took cover in a fox hole while his base was taking fire and injured his right leg and hip when fellow soldiers jumped in and landed on him. On February 28, 1974, Mr. Pacheco sought VA benefits for his injuries. In a July 1974 rating decision, he was awarded non-service-connected pension benefits, but denied disability compensation benefits because entitlement was “not shown by [the] evidence of record.” Record (R.) at 1370. Mr. Pacheco also was informed that his service medical records appeared to have been destroyed in the July 1973 fire at the National Personnel Records Center (NPRC).
In October 1977, Mr. Pacheco again filed for compensation benefits based on his right leg and hip disability. In February 1978, the Secretary located service department records — morning reports — from Mr. Pacheco’s military units that indicated he had been hospitalized and “takеn sick” several times during 1943, R. at 1295. In March 1978, however, his disability compensation claim was denied again on the merits because the morning reports did not specify any diagnosis for his hospitalization or sickness. The Secretary also determined that Mr. Pacheco was no longer eligible for non-service-connected pension because his income was too high.
Mr. Pacheco attempted to reopen his disability compensation claim based on his leg and hip injuries again in April 1982, October 1988, February 1989, and September 1995, but these attempts were denied. Moreover, in December 1998, the NPRC informed Mr. Pacheco that it had again attempted to locate his service department records, but that it “was unable to locate any alternat[iv]e record sources containing remarks pertaining to diagnosis or treatment.” R. at 913. Mr. Pacheco sought
Based on that request and the May 2001 VA medical examination record,.the Board reopened Mr. Pacheco’s claim for disability compensation and remanded the matter to obtain a medical opinion on the relationship between his current disabilities and service. In November 2004, a VA medical examiner opined that the current disabilities were related to service, and, the following month, Mr. Pacheco was granted service connection for his right leg and hip disability, and pelvic asymmetry, at disability ratings of 90% and 10%, respectively, as well as DEA and SMC. In August 2005, Mr. Pacheco was awarded an effective date for these benefits of January 23, 2002, the date.the Secretary received his request to reopen. In October 2008, Mr. Pacheco submitted additional service department records.
Mr. Pacheco sought an earlier effective date in' his appeal to the Board, which was denied, and he appealed to the Court. Before the Court in February 2011, the Secretary argued that remand was warranted for the Board to address whether the May 2001 VA medical examination record constituted an informal claim to reopen under § 3.157(b), and, on that basis, the Court remanded the issue of an earlier effective date in June 2011. Pacheco v. Shinseki, No. 10-1991,
On remand, in the September 2011 decision now on appeal, the Board again denied Mr. Pacheco entitlement to an effective date prior to January 23, 2002, for his service-connected disabilities. The Board determined that the May 2001 VA treatment record “could not be considered a claim under 38 C.F.R. § 3.157(b)(1).” R. at 10. In so concluding, the Board stated that Mr. Pacheco “does not meet the threshold criteria” for § 3.157(b), because (1) a “formal claim for pension or compensation had not been allowed (or denied because the disability was noncompensa-ble),” and (2) he was not service connected for the disabilities at issue at the time of the May 2001 VA medical exаmination record. R. at 9-10. This appeal followed.
II. ANALYSIS
A. Earlier Effective Date Under 38 C.F.R. § 3.157(b) and (b)(1)
Mr. Pacheco argues that the Board should have awarded him an earlier effective date under § 3.157(b) and (b)(1). That provision states:
(b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.
(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uni*25 formed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted аs the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.
Id. (emphases added).
Mr. Pacheco argues that he meets the requirements of the first sentence of subsection (b) because he (1) previously was awarded non-service-connected VA pension benefits and (2) filed a claim to reopen, and that he meets the last requirement of the last sentence of subsection (b)(1) because he filed his claim to reopen within one year of the May'2001 VA medical examination record. He therefore argues that the plain language of the regulation entitles him to an effective date of May 11, 2001, the date of his VA medical examination record.
The Secretary responds that the plain language of the regulation compels a different result. Specifically, he asserts that the language regarding claims for pension or compensation that havе been “allowed” is paired with the language regarding an informal claim for “increased benefits,” and the language regarding claims for disability compensation that have been “disallowed” for the service-connected disability not being compensable in degree is paired with the language regarding an informal claim to “reopen.” Accordingly, under his interpretation of the first sentence of subsection (b), a previous allowance of pension can result in an earlier effective date for claims for increased benefits, but not for claims to reopen — which require a previous disallowance for the service-connected disability not being compensable in degree. Specific to Mr. Pacheco’s case, the Secretary argues that the May 2001 VA medical examination record cannot serve as a claim to reopen because his claim was not previously disallowed for being not compensable in degree.
Alternatively, should the Court find the plain language ambiguous, the Secretary argues that deference to his interpretation of the regulation is warranted, because it is not “‘plainly erroneous or inconsistent with the regulation’” and there is “‘no reason to suspect that it does not reflect the agency’s fair and considered judgment on the matter in question.’ ” Smith v. Nicholson,
If the meaning of § 3.157(b) and (b)(1) is clear from its plain language, that meaning controls and that is the end of the matter. See Tropf v. Nicholson,
We find that the plain language of 38 C.F.R. § 3.157(b) and (b)(1) is subject to both parties’ proffered interpretations and, accordingly, we hold that the provisions are ambiguous. See Tropf,
As to Mr. Pacheco’s interpretation, taking the first sentence of subsection (b) and the last phrase of subsection (b)(1) in isolation supports his view that entitlement to earlier effective dates might be permissible on reopened compensation matters because of a previously allowed pension. But a reading of the plain language in the context of its structure could also fairly reflect the Secretary’s interpretation: that the previous pension allowance may form the predicate for an earlier effective date for an increased pension, but not a reopened compensation matter. See FDA v. Brown & Williamson Tobacco Corp.,
Given the ambiguity in the regulation, the Secretary’s interpretation will be afforded deference so long as it is not plainly erroneous or inconsistent with the regulation, and there is no reason to suspect that it does not reflect his fair and considered judgment on the matter in question. See Smith,
Such an addition reflects the Secretary’s desire to allow earlier effective dates for those whose previously service-connected condition worsened, but not those who had yet to establish sеrvice connection. Moreover, the specific language employed by
Upon the promulgation of § 3.157(b) in 1961, the two separate sentences of § 3.216(a) were combined, but there is no indication that the logic behind the evolution of this language was abandoned. See 26 Fed.Reg. 1561, 1571 (Feb. 24,1961). In fact, the Secretary recently acknowledged in the Federal Register that he has never departed from an interpretation that the language of § 3.157(b) regarding claims to reopen is paired with the language regarding disability compensation claims that previously had been disallowed for service-connected disabilities being not compensable in degree. See VA Compensation and Pension Regulation Rewrite Project, 78 Fed.Reg. 71,042, 71,069 (Nov. 27, 2013) (“[Section] 3.157(b) has never applied to permit the reopening of a claim that was denied because the claimed injury or disease was not service connected.”).
We note that the approach of considering a claim “disallowed” if a disability was service connected but noncompensable in degree is no longer prаcticed. See
As to whether the Secretary’s interpretation reflects his fair and considered judgment on this matter, Mr. Pacheco has not noted any application • of § 3.157(b) and (b)(1) by the Secretary that is inconsistent with the Secretary’s proffered interpretation, and we are not aware of any. See Hilkert v. West,
Accordingly, we hold that deference is warranted to the Secretary’s interpretation of § 3.157(b) and that the Board’s determination that § 3.157(b) was not applicable to the effective date of Mr. Pacheco’s award of disability compensation is not in violation of law or otherwise clearly erroneous. See Gilbert v. Derwinski,
We note that the Board erroneously stated that pension had not been allowed in his case, but we find such a misstatement not prejudicial because — as held above — the Secretary’s reasonable interpretation of § 3.157(b) and (b)(1) provides no relationship between Mr. Pacheco’s previous allowance of pension and the effective date to be assigned to an award made as a result of his claim to reopen his claim for disability compensation. See Soyini v. Derwinski,
B. Earlier Effective Date Under 38 C.F.R. § 3.156(c)
When the Secretary determines that a veteran is entitled to benefits, the general rule is that the award becomes effective on either the date VA received the veteran’s claim (or his claim to reopen) or the date he or she became eligible for the benefit, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (2014). However, 38 C.F.R. § 3.156(c) provides an exception to this general rule: When the Secretary decides a claim, but later receives “relevant official service department records” that existed but had not been associated with the file at the time it was decided, the Secretary “will reconsider the claim.” 38 C.F.R. § 3.156(c)(1) (2014).
Mr. Pacheco argues that, under § 3.156(c), he is entitled to an effective date of February 28, 1974, the date VA received his original claim for benefits for his disabilities. After all, in July 1974, when VA denied his claim, it did not yеt have access to the Army records it obtained in 1978 or 2008 showing that he had been hospitalized and sick during 1943 (R. at 1288-1301, 196-200), or the 1998 NPRC letter summarizing those records (R. at 913). Mr. Pacheco argues that, because those records later contributed to his suc
We note that the service department records obtained in 2008 are not completely decipherable. See R. at 196-200. In any event, the Board did not determine whether the assignment of an earlier effective date based on those records, which were associated with the claims file after the December 2004 grant of service connection for residuals of a right leg and hip injury, would constitute “[a]n award based all or in part” on those records as required by § 3.156(c)(3). Despite receipt of potentially new service department records during the pendency of Mr. Pacheco’s appeal of the assigned effective date of benefits, the Board did not address § 3.156(c) or whether the service department records received in 2008 were new and material. Because a decision on that issue would require factfinding generally outside our jurisdiction, see 38 U.S.C. § 7261; Servello v. Derwinski,
C. Clear and Unmistakable Error (CUE)
Finally, Mr. Pacheco argues that a рrior, unidentified Board decision contains CUE because, at the time of that decision, certain medical reports were not included in the record and the evidence shows that he was entitled to additional compensation based on his hip replacement surgery. Because these issues were not raised to or addressed by the Board in the decision on appeal, we lack jurisdiction to consider them. See 38 U.S.C. § 7111(e) (stating that a request for revision of a Board decision based on CUE shall be submitted directly to the Board); Andre v. Principi,
III. CONCLUSION
Upon consideration of the foregoing, the Court’s January 16, 2014, opinion is WITHDRAWN, and the September 22, 2011, Board decision is SET ASIDE and the matter REMANDED for further adjudication.
Notes
. Mr. Pacheco initially represented himself in this matter and filed his own brief, but secured pro bono counsel for oral argument, which was held on November 6, 2013, before a panel of the Court.
. We share Judge Greenberg’s view that deference can be a dangerous permission slip for the arrogation of power by administrative agencies, post at 42-43, but such concern is unfounded here, where the Secretary has maintained consistency in interpreting and applying his own regulation. Moreover, this consistency reflects that the Secretary’s interpretation is his fair and considered judgment on this matter, contrary to the view expressed in Judge Davis's separate opinion.
. Although Judge Davis’s separate opinion searches to find an inconsistency in the Secretary’s statements, the Secretary stating in 1993 that it has been his “consistent practice” to assign a noncompensable rating for service-connected disabilities not compensable in degree, Zero Percent Disability Evaluations, 58 Fed.Reg. 28,808, 28, 808-09 (May 17, 1993), in no way contradicts the Secretary also acknowledging that there was a historical practice of considering such claims disallowed for purposes of reopening. See
. The Secretary’s en banc motion acknowledged these possible applications of the regulation, despite Judge Davis's separate opinion asserting otherwise. See Secretary's En Banc Motion at 3. Moreover, the Secretary's statement in the Federal Register did not "con-ceden” that claims for increased pension do not fit into the framework of § 3.157(b), post at 38; rather, the Secretary stated that VA has “never” excluded clаims for increased pension from this regulation, and he proposed alteration of the regulatory language "to avoid such misapplication.” 78 Fed.Reg. at 71,069.
. The last sentence of § 3.157(b)(1) was added for clarification in 1987 based on a VA General Counsel unpublished opinion. See Medical Reports as Informal Claims/Recoupment of Separation Pay, 52 Fed.Reg. 3,286 (Feb. 3, 1987). The Secretary recently explained that the addition was aimed at clarifying that the view prior to 1962 — that a claimant service connected for one disability would file a claim for increase if he desired service connection for a separate disability — had been long extinct. See 78 Fed.Reg. at 71,069 (noting that language supporting such a view "has long since been repealed”). Accordingly, although Judge Davis’s separate opinion categorizes the term "increased benefits” in § 3.157(b) as broad, and it indeed had a broad meaning prior to 1962, the addition of the last sentence of subsection (b)(1) made clear that such a broad meaning did not survive 1962, and — to the extent that the VA General Counsel was confronted with lingering questions over the scope of that term — it is not "incomprehensible” for such clarification to be provided in 1987. Post at 41 n. 14.
(We shall have to agree to disagree with Judge Davis's comment in his separate opinion that our characterization of the Secretary's recent statement in the Federal Register is "inaccurate.” Post at 40-41. The Secretary was specifically discussing the circumstances that the last sentence of subsection (b)(1) "was intended to govern.” 78 Fed.Reg. at 71,069. As the Secretary's statement addresses the intentions behind the last sentence of subsection (b)(1), it seems more inaccurate to say, as Judge Davis’s separate opinion does, that the Secretary’s statement "do[es] not include any discussion regarding the 1987 amendment" that added the last sentence of subsection (b)(1). Post at 40-41 (emphasis in original).)
Furthermore, although Judge Davis’s separate opinion cites Transmittal Sheet 744 for the proposition that in 1987 VA "intended to make clear that the regulation was to apply to claims for service connection for new conditions and not merely to claims for increases for disabilities already service connected” (post at 41), we do not read the transmittal sheet as conveying the Administrator's intention to contravene the plain language of the regulation, which expressly limits the applicability of § 3.157(b) to claims for increase or claims to reopen. (Although the regulation is ambiguous on the question at issue — whether
. The regulation states in relevant part:
(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding paragraph (a) of this section.
38 C.F.R. § 3.156(c)(1). Paragraph (a) of § 3.156 defines new and material evidence. Generally, a veteran must submit new and material evidence to reopen a finally adjudicated claim. 38 C.F.R. § 3.156(a).
Concurrence Opinion
concurring:
Like so many others, I find 38 C.F.R. § 3.157(b) singularly difficult to decipher,
The general meaning of the other regulation at issue in this case, 38 C.F.R. § 3.156(c), is much less in doubt. Its application to the unique facts of this case, however, raises a novel interpretative question. For reasons I will explain below, I do not think that it is appropriate to answer that question at this time. I therefore agree that the appellant’s case should be remanded to the Board of Veterans’ Appeals (Board) for it to cоnsider, in the first- instance, whether the appellant is entitled to use § 3.156(c) to achieve an earlier effective date for his disability benefits.
Pursuant to § 3.156(c)(1), “any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.” If VA then grants the claimant entitlement to the benefits he seeks, the effective date for those benefits is “the date entitlement arose or the date VA received the previously decided claim, whichever is later.” 38 C.F.R. § 3.156(c)(3).
The appellant’s claim was initially denied in 1974. Record (R.) at 1370. In 1978, VA obtained documents that appear to be “relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim,” considered those documents, and again denied his' claim. 38 C.F.R, § 3.156(c)(1); R. at 1285-87, 1290-1301. When; nearly 30 years later, VA finally granted his claim, it relied in part on his service department records. R. at 530-537. For that reason, the'appellant believes; VA should apply § 3.156(c)(3) to the facts of his case. Proper application of that provision, he asserts, indicates that the effective date for his disability benefits should be in February 1974.
If the 1978 decision didn’t exist, the appellant’s argument would stand a good chance of succeeding. But that 1978 decision cannot be ignored. The question before the Court, then, is whether VA’s 1978 decision foreclosed the aрpellant’s eligibility for an effective date based on § 3.156(c)(3) even though VA was eventually persuaded to award him disability benefits in part by service department records that were extant but not in the record when it originally denied his claim in 1974.
Chief Judge Kasold believes that the rule of finality governs, and the finality of the 1978 decision, unless it is overcome by collateral attack, blocks VA from applying § 3.156(c)(3) to records obtained before that decision was issued. Post at 34 (cit
Which brings me to the reason why I believe that this issue should be remanded to the Board. The record reveals that VA has never considered whether § 3.156(c) applies to the appellant’s case. The Board did not address the matter. The appellant, acting pro se at the time, did not raisé it when he submitted his initial brief to the Court. The Secretary mentioned § 3.156(c) in his brief, but did not address the specific issue now before us. The appellant did not file a reply brief. The appellant, after obtaining counsel, brought the § 3.156(c) question to the Court’s attention in a notice of supplemental authorities. He stated the issue, but provided no analysis.
The appellant’s counsel briefly discussed the matter during an oral argument held by the original panel in this case. When the Secretary’s counsel rose, she сhose not to discuss § 3.156(c), and the panel did not ask her about the regulation or the appellant’s arguments. The panel remanded the § 3.156(c) issue to the Board for it to consider it in the first instance. The Secretary, in his motion for full Court review, did not challenge that portion of the panel’s decision. In his response to the Secretary’s motion, the appellant argued that § 3.156(c) should apply to his case. As Chief Judge Kasold rightly notes, the appellant’s argument was not thorough. Post at 34. The Secretary did not respond to the appellant, and the Court has not asked him to do so. To date, the Secretary has never presented argument concerning the § 3.156(e) issue in this case. There is no precedential decision of this Court discussing that issue, at least none that Chief Judge Kasold cites.
I do not necessarily disagree with Chief Judge Kasold’s interpretation of § 3.156(c). However, because the Board and Secretary have not addressed the matter and the appellant has done so inadequately, my opinion is at present not well informed. The tenets of judicial restraint counsel me against foisting my uninformed view of this issue on posterity (and untold numbers of future claimants) in the absence of relevant precedent and in the face of virtual silence from the parties, especially when that silence can be remedied simply by sending this case back down. See Michigan v. Long,
When an issue is raised for the first time on appeal, the Court may decide it, remand it, or decline to address it. Maggitt v. West,
. In a May 2013 single-judge memorandum decision, the Court decided this issue under a set of faqts that, for present purposes, are essentially identical to those in this case. The Court reached a conclusion very similar to the conclusion Chief Judge Kasold reaches in his partial dissent. See Blubaugh v. Shinseki, No. 12-0483,
Concurrence Opinion
We fully concur with the per curiam opinion in its holding that deference is warranted to the Secretary’s interpretation of § 3.157(b), and that § 3.157(b) is not applicable to the effective date of Mr. Pacheco’s award of disability compensation. On the other hand, we dissent from the Maggitt remand regarding § 3.156(c). As there have been no newly discovered service records since the last final decision on the merits of Mr. Pacheco’s claim in March 1978, we do not believe § 3.156(c) is for application. See 38 C.F.R. § 3.156(c)(1) (pertaining to service records that “had not been associated with the claims file” at the time of the previous decision).
Mr. Pacheco argues that, pursuant to § 3.156(c), he is entitled to an effective date of February 28, 1974, the date the Secretary received his original claim for benefits for his disabilities. In support of his argument, he notes that, when his claim was denied in July 1974, the Secretary did not yet have access to the Army records that document his hospitalization and sickness during 1943 or the 1998 NPRC letter summarizing those records. Mr. Pacheco further argues that, because those later-obtained records contributed to his successful claim for benefits for his disabilities, § 3.156(c) mandates an effective date going back to his original claim on that issue.
Although Mr. Pacheco is correct that the July 1974 denial did not take into account the morning reports reflecting an in-service hospitalization, he fails to recognize that the last previously decided claim on the merits was a March 1978 denial of service connection that considered the morning reports, and that decision was not appealed and became final. Succinctly stated, Mr. Pacheco fails to demonstrate how a 1974 effective date is warranted in light of the intervening and final March 1978 rating decision that considered the morning reports. See Hilkert v. West,
The 1998 NPRC letter and additional records received in October 2008 do not change our analysis. First, even if the 1998 NPRC letter summarizing already received records constituted a service department record, that letter did not exist in 1974 or 1978, such that it does not meet the enumerated criteria of § 3.156(c)(2), which notes that subsection (c)(1) does not apply to records that “did not exist when VA [previously] decided the claim.” Moreover, the service records received in October 2008 are identical to those submitted in 1978, compare R. at 196, 198, and 200, with R. at 1294,1297, and 1300; therefore, these records were previously associated with the claims file at the time the Secretary previously decided the claim, such that § 3.156(c) is not for application. See 38 C.F.R. § 3.156(c)(1) (pertaining to service records that “had not been associated with the claims file” at the time of the previous decision), (c)(3) (providing for effective date based on, inter alia, “the previously decided claim”); cf. Voracek v. Nicholson,
Accordingly, although we concur with the holding of the per curiam order on § 3.157(b), we dissent to the remand based on § 3.156(c).
. With regard to Judge Greenberg’s discussion of equity, it is indisputable that equitable relief is unavailable where it is otherwise restricted by law. See Rosenberg v. Mansfield, 22 Vet.App, 1, 5 (2007) ("The [U.S.] Supreme Court has held that the Appropriations Clause of the Constitution, U.S. Const, art. I, § 9, cl. 7, precludes the judiciary from ordering an award of public funds to a statutorily ineligible claimant on the basis of equitable estop-pel.” (citing OPM v. Richmond,
. If Mr. Pacheco believes that the final March 1978 rating decision contains CUE, he is free to file below a motion for revision of the rating decision based on CUE. See 38 C.F.R. § 20.1404.
. Although Judge Pietsch correctly notes that the Secretary has not presented his views on § 3.156(c) in this litigation, it is only because Mr. Pacheco raised the issue so late in the process. The issue could have been ignored entirely by the Court, see Fugere v. Derwinski,
Concurrence Opinion
In addition to the views expressed by my dissenting colleagues on the issue of § 3.156(c), I dissent from the majority’s decision to remand the ripe legal question of § 3.156(c)’s application to this case based on the facts as found by the Board, a question for which Mr. Pacheco explicitly seeks an answer in his favor. See Appellant’s Response to Appellee’s Motion for Full Court Review at 2 (“If, however, this Court decides to engage in Full Court Review, Mr. Pacheco respectfully requests that this Court exercise its authority to decide whether Mr. Pacheco is entitled to an earlier effective date of 1974 under 38 C.F.R. § 3.156(c) — he is.”). Although “[expediency may tip the scales when arguments are nicely balanced,” Woolford Realty Co., Inc. v. Rose,
Absent a cognizable theory from the majority as to how § 3.156(c) could ever operate so as to provide an earlier effective date in the face of a final agency decision that considered the relevant service records, the Court does nothing more here than perpetuate the hamster wheel, asking the Board to spin it unnecessarily in the search for an earlier effective date that cannot exist as a matter of law. See Coburn v. Nicholson,
Concurrence Opinion
We agree with Part II.B and Part II.C of the majority opinion. We also agree with the majority’s conclusion that the language of § 3.157 is not clear with respect to the issue presented in this case. Ante at 25-26 We respectfully dissent, however, from the majority’s conclusion in Part II.A that the Court must defer to the Secretary’s regulatory interpretation. Because the agency interpretation in this case overlooks and fails to provide a reasonable interpretation of the regulation’s language, does not represent the Secretary’s considered view, and does not resolve the patent ambiguity in the regulation in favor of the veteran, we would accord it no deference. See Mason v. Shinseki,
The Secretary believes a “parallel structure” reading of § 3.157(b) essential to his interpretation. He contends that under this parallel structure, the first part of the first sentence of § 3.157(b) addresses two types of formal claims: (1) “a formal claim for pension or compensation that has been allowed,” and (2) “a formal claim for compensation or pension that has been disallowed.” Secretary’s Motion (Mot.) for En Banc Review at 13 (quoting § 3.157(b)). The second part of the sentence states that receipt of one of the specified medical reports will be accepted as (1) “an informal claim for increased benefits” or (2) “an informal claim to reopen.” Id. According to the Secretary, the first phrase in the first part of the sentence is paired with the first phrase in the second part of the sentence, and the second phrase in the first part of the sentence is paired with the second phrase in the second part. “This is the most logical reading,” the Secretary contends, “because it is most logical to pair language regarding an ‘informal claim to reopen’ with language regarding a claim that was denied rather than with language regarding a claim that was allowed.” Mot. for En Banc at 4.
Under the Secretary’s interpretation, a veteran rеceiving disability compensation for a particular disability, thus falling into the “allowed” parallel, may file an informal claim for an increased rating for the service-connected disability. A veteran previously granted pension benefits, thus falling into the “allowed” parallel, may file an informal claim for increased pension benefits. A veteran who filed a claim for disability compensation that was “disallowed,” thus falling into the “disallowed” parallel may file a “reopened” claim, but only if his or her claim was “disallowed” because it was noneompensable under the schedule for rating disabilities. The Secretary contends that under § 3.157(b), these are the only circumstances under which a medical record may constitute an informal claim for increase or to reopen. See Mot. for En Banc at 6.
This construction would render superfluous the last phrase of the last sentence in § 3.157(b)(1). See Roper v. Nicholson, 20 VetApp. 173, 178 (2006) (noting that a regulation must be interpreted “so that effect is given to all its provisions”). The final sentence of § 3.157(b)(1) states that the regulation applies “when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.” (Emphasis added.) The regulation’s use of the disjunctive “or” signifies “alternative components.” McDowell v. Shinseki,
Yet the Secretary’s contention that § 3.157(b) applies “only ... to claims for compensation that relate to previously service-connected disabilities” (Mot. for En Banc at 14 (emphasis added)) reads out the alternative situation in which this regulatory section is applicable, namely, “when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission.”
Such an interpretation is not permissible. The Secretary makes no effort to offer an explanation of how he interprets the last phrase of the last sentence in § 3.157(b)(1), or how this sentence falls within the parallel structure of the regulation that he advocates.
Thé Secretary’s construction also fails to acknowledge § 3.157(b)’s use of the broad phrase “increased benefits” or explain why that broad language could not include Mr. Pacheco in the first parallel of the regulation’s parallel structure. Under the Secretary’s interpretation, the first parallel consists of veterans previously allowed compensation or pension who seek “increased benefits.” 38 C.F.R. § 3.157(b) (“Once a formal claim for pension or compensation has been allowed ... receipt of one of the following will be accepted as an informal claim for increased, benefits”) (emphasis added). Mr. Pacheco claims that his May 2001 treatment report should be considered an informal claim for “increased benefits” because he was previously allowed pension and is therefore part of the “allowéd” parallel.
The Secretary argues that the May 2001 treatment report cannot be an informal claim for increased benefits because he interprets the broad phrase “increased benefits” as restricted to increased compensation benefits in the case of veterans previously denied compensation and increased pension benefits in the case of veterans previously denied pension. Mot. for En Banc at 5-6. He argues that § 3.157(b) should not be interpreted to “pair” an allowed claim for pension with a claim for increase related to disability compensation. However, his own interpretation of the regulation would “pair” compensation and pension claims, requiring a veteran seeking increased pension benefits to' show that'he or she receives service-connected compensation.
Under the Secretary’s construction of the regulation, which ignores the phrase beginning with “or” in the last line of § 3.157(b)(1), a veteran such as Mr. Pacheco, who was previously allowed non-service-connected pension and who wishes to obtain the earliest possible effective date of increased benefits under § 3.157(b), must show that the medical report “relate[s] to examination or treatment of a disability for which service conneсtion has previously been established.” 38 C.F.R. § 3.157(b)(1). See VA Compensation and Pension Regulation Rewrite Project, 78 Fed.Reg. 71,042, 71,069 (Nov. 27, 2013) (VA concedes that the § 3.157(b)(1) requirement that a report relate to a service-connected disability improperly imposes a service-connection requirement as to claims for increased pension). VA having admitted that § 3.157(b)(1) forces increased pension claimants to show their disability is service connected, the Secretary is hoisted on his own petard: The flaw he identifies in Mr. Pacheco’s interpretation, the pairing of compensation and pension claims, is integral to the Secretary’s interpretation of the current regulation.
In addition, a close inspection of the Secretary’s interpretation raises concerns about the “disallowed” parallel of the regulation, a “claim for compensation disallowed for the reason that the service-connected disability is not compensable in
In contrast, however, Technical Bulletin 8-180, which VA cites for this proposition, indicates that such a claim would actually have been disallowed. See Claims for Increase and Reopened Awards, Technical Bulletin 8-180, ¶ 4 (Jun. 13, 1951) (“Where a claim has been finally disallowed for the reason that the service-connected condition was not 10% disabling in degree, ... the report of hospitalization constitutes an informal claim to reopen”). Also, our colleagues in the majority cite a 1952 regulation, 38 C.F.R. 3.216(a), which the Secretary does not mention in his'brief or his en banc motion, and conclude that “unlike the old practice, where a claim disallowed for the reason of not being compensable in degree had to be reopened when a claimant sought a compensable rating, the current practice is to allow a claim for increase in such circumstances.” Ante at 27. However, the majority’s view and the statement in Technical Bulletin 8-180 contradict the Secretary’s 1993 Federal Register statement that its “consistent practice” was to grant service connection and assign a noncompensable evaluation and the Secretary’s 2013 Federal Register statement that VA granted service connection but “considered” or construed it as a denial or disallowance.
In other words, the Secretary’s interpretation of the regulation has been anything but consistent. These contradictory views of the “disallowed” parallel of the regulation cast additional doubt on the Secretary’s interprеtation of the regulatory language, and the majority’s attempt to synthesize the history and meaning of the “disallowed” parallel on the Secretary’s behalf falls short.
It is also troubling that the “disallowed” parallel is, at the very least, an anachronism based on an arcane view of the law, which the Secretary uses to support his denial of benefits. This Court has held for over 20 years that a claim for a higher disability rating is a new claim for an increased rating and not a claim to reopen. See Proscelle v. Derwinski,
Moreover, we conclude that the Secretary’s interpretation, offered for the first time in his motion for en banc review, does not represent his established or considered
Additionally, the Administrator of the Veterans Administration
Informal claims must reasonably identify the benefit sought, and reports of examination or treatment of a disability for which service-connection has not yet been established do not justify an assumption that service-connection is being claimed. On the other hand, if service-connection has already been established for a disability, a report of examination or treatment for that disability does justify an assumption by the VA that the veteran seeks increased compensation for that disability.
Id. (emphasis added). The transmittal sheet issued by the Administrator clearly indicates that the regulation was amended in 1987 to include the requirement that a veteran identify the benefit sought because a medical report could not constitute a claim for service connection for a new condition unless the veteran identified the benefit sought. By contrast, such-a requirement was unnecessary when the veteran was seeking increased compensation for a disability for which he was already service connected.
The majority relies on a 1961 amendment to § 3.157(b)(1) to conclude that VA’s “desire [was] to allow earlier effective dates for those whose previously service-connected conditions] worsened, but not those who had yet to establish service connection.”
We are also disturbed that the Secretary’s proffered position in his motion for en banc review contradicts the position he took earlier in this same case. In 2010, Mr. Pacheco appealed an earlier Board decision on this same issue to this Court. At that time, the Secretary urged the Court to remand the case for the Board to address § 3.157(b). In urging remand, the Secretary stated:
The May 2001 VA treatment note is dated within one year of [a]ppellant’s January 23, 2002, claim to reopen [his claim for service connection]. However, in the decision on appeal, the Board did not discuss or consider whether 38 C.F.R. § 3.157(b) should be applied in assigning an effective date for the grant of service connection.
Secretary’s Br. at 11, in No. 10-1991 (emphasis added); see Pacheco v. Shinseki, No. 10-1991,
The majority states that no significance should be attached to the Secretary’s previous motion for a remand because he was merely ensuring that the Secretary discussed all potentially applicable regulations. Ante at 27-28. Yet, according to
We must also dissent from the majority opinion because it fails to resolve interpretive doubt in favor of the veteran, as we are bound to do under Gardner, 513 U.S. at 118,
In sum, we believe that deference to the Secretary is not appropriate here because his interpretation of § 3.157(b) is inconsistent with and overlooks portions of the regulation’s language and structure, does not represent his considered view on the matter, and does not resolve the provision’s ambiguity in the veteran’s favor. For the reasons set forth in the January 16, 2014, panel opinion, we would reverse the Board decision and order the Board, pursuant to § 3.157(b), to grant an effective date of May 11, 2001, for the award of service connection for a right leg and hip disability. Although we agree that § 3.157(b) is ambiguous, we respectfully dissent from the remainder of Part II.A of the per curiam opinion.
. The majority says that the last part of subsection (b)(1) applies to "when ... a
. The Department of Veterans Affairs was established on March 15, 1989, to succeed the Veterans Administration, which was headed by an Administrator.
. It is noteworthy that the Secretary’s en banc motion fails to discuss the history of the regulation and its evolution. This failure by the Secretary puts the Court at a disadvantage.
. We observe the Secretary’s statement in the Federal Register that the last sentence of § 3.157(b)(1), the sentence at issue in this case, addressed a statutory provision repealed in 1962. VA Compensation and Pension Regulation Rewrite Project, 78 Fed.Reg. 71,042, 71069 (Nov. 27, 2013). Yet, he added the last sentence of § 3.157(b)(1) in 1987. It is incomprehensible to us that the Secretary would add the last sentence of § 3.157(b)(1) to the regulation in 1987 to address a statute that was repealed in 1962.
. The majority also states that it does not read the transmittal sheet "as conveying the Administrator's intention to contravene the plain language of the regulation, which expressly limits the applicability of § 3.157(b) to claims for increase or claims to reopen.” Ante at 28, n. 5. This is puzzling because the majority explained earlier that the language of the regulation was ambiguous and that this was the reason it was deferring to the Secretary's interpretation expressed in his motion. Ante at 25-26.
Concurrence Opinion
concurring in part and dissenting in part:
I concur as to the Court’s remand of this case, dissent as to its affirmance of any part of the Board decision, and ultimately would go much further than my colleagues in resolving this case. Our Court must not continue to show deference to the Secretary’s interpretations of statutes and regulations where, as here, doing so contravenes the long-applied veterans “canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.” King v. St. Vincent’s Hospital,
In the matter of deference, I would not reward the Secretary for writing an ambiguous, and unintelligible, regulation. Thus, I would give no deference to his interpretation of 38 C.F.R. § 3.157(b). As stated by Chief Justice Roberts, “[t]he rise of the modern administrative state has not changed” the “ ‘duty of the judicial department to say what the law is,’ ” City of Arlington v. FCC, — U.S.-,
The Court must be guided foremost by the veterans canon when it applies the law. The statutes and regulations relevant in this case should be interpreted and applied in light of that canon, particularly as “[i]t is presumable that Congress legislates with knowledge of our basic rules of statutory construction.” McNary v. Haitian Refugee Center, Inc.,
Informed by clear congressional intent, and the judicial tradition of executing that intent when reviewing veterans benefits,
Acknowledging our rеpeated insistence in our caselaw that “this Court is not a court of equity and cannot provide equitable relief,” Moffitt v. Brown,
We must provide equitable remedies to deserving veterans and harmonize our jurisprudence with the veterans canon, ap
. See, e.g., Hayburn's Case,