Brian E. Routen, Claimant-Appellant v. Togo D. West, Secretary of Veterans AffairsBrian E. Routen, Claimant-Appellant v. Togo D. West, Secretary of Veterans Affairs
Lead Opinion
Opinion of the court filed by Circuit Judge PLAGER. Circuit Judge BRYSON concurs in part and dissents in part.
This case addresses the circumstances under which a veteran may reopen or otherwise obtain reconsideration of a case previously closed. Brian E. Routen appeals the decision of the Court of Veterans Appeals, case No. 95-673 (Apr. 9, 1997), in which the court upheld the denial by the Board of Veterans Appeals (“Board”) of Mr. Routen’s application to reopen his claim for disability benefits. Because the establishment by the Department of Veterans Affairs (“VA”) of a different evidentiary standard of proof for the Government to rebut a burden-shifting presumption relating to the presentation of evidence does not serve either as “new and material evidence” or as a substantive change in the law creating a new cause of action, we affirm.
BACKGROUND
In April 1977, Brian E. Routen attempted to enlist in the U.S. Navy. As a result of his enlistment examination, he was deemed medically ineligible to enlist due to psoriasis on his legs, a disqualifying skin disease. Following the submission of a letter from his personal physician noting that the rash was successfully treated and was just an “eczema-tous patch ... with secondary infection,” Mr. Routen’s entrance medical examination record was changed from psoriasis to episodic eczema, and he entered the naval service. Mr. Routen served on active duty less than a year, from December 1977 to October 1978.
Not long after entering service, Mr. Rout-en complained of itchy, scaling skin. His condition was diagnosed by Navy doctors as psoriasis; he was treated for scaling on the knees, elbows, and palms, a condition which continued. Then, in September 1978, a Medical Board reviewing Mr. Routen’s medical fitness for continued military service wrote that “[i]t is the opinion of the Board that [Routen] ... is unfit for further Naval Service by reason of a physical disability which was neither incurred in, nor aggravated by, a period of active military service.” Based upon a finding that Routen had developed the disease two years before enlistment, the Board reported a final diagnosis of psoriasis vulgaris, concluding that the disease “[ejxist-ed prior to enlistment/Nonserviee aggravated.” Mr. Routen was given a medical discharge from the Navy.
Not long thereafter, in January 1979, Mr. Routen filed a claim with the Veterans Administration for disability benefits based on his psoriasis, alleging that the disease was service connected. As a general matter, a veteran who has served in the armed forces during peacetime is entitled to compensation for a disability resulting from a disease contracted in the line of duty, or for aggravation of a preexisting disease caused in the line of duty. See
On January 30, 1979, the Veterans Administration Regional Office (“VARO”) denied Mr. Routen’s claim with the notation that the psoriasis was “neither incurred in nor aggravated by his short period of active duty.” Mr. Routen did not appeal from that determination; the decision became final.
Later in 1979, Mr. Routen again sought disability benefits for his skin condition. Treating his application as a request for reconsideration, the VARO, on July 10, 1979, again denied his claim. Some nine years later, in May 1988, Mr. Routen applied yet again for veterans benefits, and again the VARO denied his claim. The record does not indicate that any of these later denial decisions by the VARO were appealed.
Then in September 1992, Mr. Routen filed an application to reopen his claim. He presented medical treatment records documenting a long history of care for his psoriasis to establish service connection. See
The Board in April 1995 affirmed the decision of the VARO without reaching the merits of the claim, determining that the new records were not new and material for the purpose of reopening Routen’s claim. The Board apparently did not consider the effect of a 1992 change in
On Mr. Routen’s subsequent appeal to the Court of Veterans Appeals, that court affirmed the Board’s decision, finding that neither the newly submitted medical records, nor the change in the presumption of aggravation rule constituted “new and material” evidence sufficient to reopen Routen’s claim. This appeal followed.
DISCUSSION
I
This court has limited jurisdiction in reviewing decisions of the Court of Veterans Appeals. See
II
Mr. Routen’s several claims during the 1970s and 1980s for disability benefits, beginning with the initial claim in 1979, were all disallowed by the Veterans Administration. No appeals therefrom were taken, and they became final dispositions. Basie principles of finality and res judicata apply to such agency decisions. “A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided [under the ‘clear and unmistakable error’ rule].”
Under existing law there are three grounds on which a veteran may seek further consideration of a previously closed case. The first ground, specified by statute, is to show that there was a “clear and unmistakable error” in the determination being reviewed. 38 U.S.C §§ 5109A (reviewing Secretary decisions) & 7111 (reviewing Board decisions) (Supp. IV 1998). The pertinent regulation specifically states: “Previous determinations which are final and binding ... will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended.”
A second ground, again statutory, under which a previously closed case may be reopened is to present “new and material evidence” sufficient to reopen the claim. “If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.”
Thirdly, as a matter of basic law, we have held that under appropriate circumstances an intervening change in the applicable law may entitle a veteran to receive consideration of a claim, even though the claim is based on essentially the same facts as those in a previously adjudicated claim. See Spencer,
Ill
VA law provides that, for veterans of both wartime and peacetime service, if a preexisting disease causes an increase in disability during a period of military service, it is presumed that the disease was aggravated by the active service. See
For wartime service veterans, rebutting the presumption requires the Government to make a specific showing, based on “clear and unmistakable evidence,” that the increase in disability was due to the natural progress of the disease. See
Mr. Routen argues that the change in the evidentiary standard for rebutting the presumption is now applicable to his case, and that it constitutes “new and material evi
IV
The decision by the Court of Veterans Appeals in Akins v. Derwinski
In the course of its opinion, the Court of Veterans Appeals noted that “the factual predicate demonstrated by the presumptions have an important evidentiary value and, to that extent, are the functional equivalent of evidence.” Id. at 230. Hence, the failure to apply the presumptions provided a basis for reopening the claim. The court then cited a Court of Veterans Appeals case, indicating that it involved “new and material evidence,” as well as
But the Akins decision did not involve the question of reopening a case based on new and material evidence. As the court stated, “[o]n appeal ... appellant contended that the denial of his original claim ... was clear and unmistakable error.” Id. at 228. The. court’s conclusion was that there was such error, an independent ground for correction unrelated to the “new and material evidence” rule. The Akins court specifically noted that the appellant chose to demonstrate clear and unmistakable error, presumably in order to gain entitlement to benefits dating back to his original claim, see
This court has never treated a presumption as any form of evidence. See, e.g., A.C. Aukerman Co. v. R.L. Chaides Constr. Co.,
Jensen involved an appeal from the Court of Veterans Appeals regarding the validity of a regulation creating a special presumption relating to aggravation of preexisting conditions during combat, and its application to the case of the appellant veteran. The question was whether the agency had misapplied the presumption. The Court of Veterans Appeals had held that the regulation was invalid as conflicting with governing statutes, and thus the question of misapplication was moot.
In the course of its review of the Court of Veterans Appeals decision, the Jensen court noted that the Court of Veterans Appeals had held that “the misapplication of, or in this case the alleged complete failure to apply, an evidentiary regulation may be a form of new and material evidence sufficient to reopen a claim.” Jensen,
Thus the Jensen court simply assumed that the case before it had been properly “reopened” in accordance with established VA procedures, and proceeded with its review regarding the validity of the regulation at issue. The Jensen court concluded that the regulation was valid, reversed the decision of the Court of Veterans Appeals, and remanded the ease. On remand, the Court of Veterans Appeals stated that “[i]t appears that the Federal Circuit in reversing this Court has determined, as a matter of law, that
Today we address the issue directly, and hold that the misapplication of, or failure to apply, a statutory or regulatory burden-shifting presumption does not constitute “new and material evidence” for the purpose of reopening a claim under
The presumption affords a party, for whose benefit the presumption runs, the luxury of not having to produce specific evidence to establish the point at issue. When the predicate evidence is established that triggers the presumption, the further evidentiary gap is filled by the presumption. See 1 Weinstein’s Federal Evidence § 301.02[1], at 301-7 (2d ed.1997); 2 McCormick on Evidence § 342, at 450 (John W. Strong ed., 4th ed.1992). However, when the opposing party puts in proof to the contrary of that provided by the presumption, and that proof meets the requisite level, the presumption disappears. See Texas Dept. of Community Affairs v. Burdine,
The party originally favored by the presumption is now put to his factually-supported proof. This is because the presumption does not shift the burden of persuasion, and the party on whom that burden falls must ultimately prove the point at issue by the requisite standard of proof. See
Here, the question is what evidence constitutes “new and material evidence” entitling a petitioner to reopen a previously decided and closed case. By its terms, § 5108 requires “evidence,” which the regulations describe as “evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, [and] which is neither cumulative nor redundant.”
V
Mr. Routen also contends that the 1992 change extending the presumption of aggravation to peacetime service veterans was “liberalizing,” entitling him to reconsideration of his claim under Spencer v. Brown,
When a provision of law or regulation creates a new basis of entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit, an applicant’s claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation. The applicant’s later claim, assert-' ing rights which did not exist at the time of the prior claim, is necessarily a different claim.
Id. at 372 (quoting Spencer v. Brown,
There is no statutory basis for review of a previously adjudicated claim following an intervening change in the law. On the contrary,
Except as provided in section 5108 of this title [dealing with reopening of disallowed claims on the grounds of new and material evidence], when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.
The apparent basis for the assumption that a claim may be reconsidered under a “liberalizing” intervening law, even though grounded on the same factual basis, is
In Spencer, this court accepted the Court of Veterans Appeals’ view that the preclusive language of
In Spencer, the court went on to analyze whether the statute being pressed by the appellant was a law that created a new basis for entitlement, and concluded that it was not. The court explained that:
Spencer’s argument fails to appreciate that the reforms implemented by the VJRA were directed to improving the adjudicative process and did not create new substantive rights to veterans’ benefits.... Spencer does not identify any changes effected by the VJRA that substantively affected the nature of his claim such that it became different and distinct from the one previously denied by the Board.
Id. at 372-73.
In our case, the regulation at issue now provides that the presumption of aggravation is rebutted by “clear and unmistakable evidence ... where the preservice disability underwent an increase in severity during service.”
The dissent would have us remand this issue to the Court of Veterans Appeals to determine whether the difference in eviden-tiary standard “is enough to make the 1992 change a ‘liberalizing change’ of the sort that entitles a veteran such as Mr. Routen an opportunity to renew his application for disability benefits.” Dis. op. at 1443. As explained above, this difference cannot be considered an intervening change because it failed to effect a substantive change in the law. Thus, the dissent’s argument only makes sense if, despite the express prohibition of
It is certainly possible that had the new presumption standard been in effect and applied at the time Mr. Routen’s claim was first considered, the outcome in his case might have been different. But the issue in this ease is not whether on the merits Mr. Rout-en got a fair deal, but whether the deal he got is now subject to being revisited years later. The finality rule,
With regard to the third exception, for which, unlike the other two, there is no specific statutory provision, the logic of the intervening change rule, if it is to escape the bar of
In short, on the facts of this ease, the Court of Veterans Appeals correctly determined that there has been no substantive change in the law creating a new cause of action. A remand to that court is unnecessary and unwarranted since there is no legal ground on which that court could hold otherwise.
VI
Finally, to the extent that Mr. Rout-en argues on appeal that, relying on the medical records, no specific factual finding
CONCLUSION
The judgment of the Court of Veterans Appeals is
AFFIRMED.
Notes
. The purpose of the change was to bring
. Accord. Vet. Aff. Op. Gen. Couns. Prec. 38-97,
Concurrence Opinion
concurring in part and dissenting in part.
I agree with the court that the 1992 change in the application of the presumption of aggravation to peacetime veterans does not constitute “new and material evidence” within the meaning of
Prior to December 1992, both wartime and peacetime veterans were entitled to a presumption of aggravation (ie., that any increase in a preexisting disability was caused by military service), if they were able to show that the disability underwent an increase in severity during service. For both classes of veterans, the presumption could be rebutted by a showing that the increase in disability was due to the natural progression of the disease or condition. See
As a result of the 1992 change, some peacetime veterans whose service connection claims would have failed under the earlier “preponderance” standard will prevail under the “clear and unmistakable evidence” standard. Whether that difference is enough to make the 1992 change a “liberalizing change” of the sort that entitles a veteran such as Routen an opportunity to renew his application for disability benefits is an issue that