Clabon JONES, Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Appellee.
No. 06-2036.
United States Court of Appeals for Veterans Claims.
Argued April 29, 2009. Decided June 18, 2009.
23 Vet. App. 122
Lavinia A. Derr, with whom Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; and Edward V. Cassidy, Jr., Deputy Assistant General Counsel, all of Washington, D.C., for the appellee.
Before KASOLD, HAGEL, and DAVIS, Judges.
DAVIS, Judge:
U.S. Army veteran Clabon Jones appeals through counsel from a March 16, 2006, Board of Veterans’ Appeals (Board) decision that denied him entitlement to an
This appeal is timely, and the Court has jurisdiction to review the Board‘s decision pursuant to
I. BACKGROUND
Mr. Jones served on active duty from August 1969 to March 1971. After his discharge, he filed several claims for VA compensation for a psychiatric disorder. The first, on September 14, 1973, was for “nerves“; the VA regional office (RO) denied his claim in February 1974. In March 1974, Mr. Jones filed a statement in which he requested, in pertinent part: “Please consider this a Notice of Disagreement [(NOD)] on a claim for re[ ]evaluation for my nervous condition.” Record (R.) at 36. Between April 1974 and January 1977, the RO issued deferred and confirmed rating decisions denying the claim, but did not issue an SOC.
In July 1983, citing a deterioration of his condition since Vietnam, Mr. Jones filed a claim for compensation for PTSD. In August 1983, the RO determined that PTSD did not provide a new factual basis to establish service connection for a “nervous disorder.” R. at 139. That decision became final.
In June 1985 and again in November 1985, the RO denied Mr. Jones‘s requests to reopen his previously denied claims for compensation for a “nervous condition.” R. at 206, 212. Mr. Jones initiated and perfected an appeal, and in November 1986, the Board denied service connection for a ” ‘nervous condition’ to include [PTSD].” R. at 312. That decision became final.
After Mr. Jones submitted further statements in support of his claim, the RO issued a rating decision in March 1987 noting no new factual basis to establish service connection for a nervous disorder. He appealed that decision, and in February 1988, the Board affirmed the RO decision.
In May 1989, Mr. Jones filed an application to reopen his previously denied claim for compensation for “PTSD.” R. at 429. In October 1995, the Board ultimately granted entitlement to service connection for “PTSD” (R. at 861), and the RO later assigned an effective date of May 19, 1989. Mr. Jones continuously appealed that effective-date determination, culminating in the Board decision here on appeal denying an earlier effective date.
Before the Court, Mr. Jones argues that we should reverse the Board decision and award him an effective date of September 14, 1973, the date that he originally filed his claim for compensation for a psychiatric disorder.1 In support of his argument,
II. ANALYSIS
A. Pending Claim
Mr. Jones argues that, under Myers v. Principi, 16 Vet.App. 228 (2002), a VA procedural error can cause a claim stream to remain open. In particular, he contends that once he filed an NOD with the February 1974 RO decision, that claim, then in appellate status, remained open and pending until issuance of an SOC or Board decision adjudicating that claim. He argues that no finality attached to the subsequent adjudications as a result of VA‘s failure to issue an SOC following his March 1974 NOD.
Once a decision is issued by the RO, a claimant has the right to “one review on appeal to the Secretary.”
If the Secretary fails to act on a claim or if he fails to provide the veteran with information or material critical to the appeal, that claim remains pending. See Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (citing Hauck v. Brown, 6 Vet.App. 518 (1994)); Norris v. West, 12 Vet.App. 413, 422 (1999); see also
The question presented, however, is whether that claim remained pending indefinitely as a result of VA‘s failure to issue an SOC with regard to the March 1974 NOD. This Court has recognized that, generally, a later adjudication of a claim having substantially the same substance as a pending claim resolves the pending claim. See Williams (Vernon) v. Peake, 521 F.3d 1348, 1350 (Fed. Cir. 2008) (“[A] reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent ‘claim’ for the same disability.” (quoting Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007))); see also Juarez v. Peake, 21 Vet.App. 537, 542 (2008) (concluding that a decision on claim to reopen put appellant on notice that his original claim for compensation had also been denied). However, as noted in Mr. Jones‘s motion, Williams, Juarez, and Ingram are distinguishable from this case because in those cases, the appellants’ claims had not been placed into appellate status. This Court has not yet decided whether a claim remains pending where an appellant places a claim into appellate status by filing an NOD and VA fails to issue
This Court has indicated, however, that where the claim was placed into appellate status by virtue of an NOD, subsequent RO decisions cannot resolve the pending claim. “[O]nce an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board. Only a subsequent Board decision can resolve an appeal that was initiated but not completed.” Juarez, 21 Vet.App. at 543. The Court agrees that Juarez‘s reasoning applies here: An appeal can only be resolved by an appellate body, i.e., the Board. In other words, VA‘s failure to provide appellate review can only be cured by subsequent Board adjudication of the same claim.
Here, the Board considered and adjudicated Mr. Jones‘s appeal of a November 1985 RO decision denying entitlement to VA benefits for a nervous condition, to include PTSD, in a 1986 Board decision. Mr. Jones attempts to distinguish his 1973 claim from the subject of the 1986 Board decision by arguing that his original 1973 claim for VA compensation for “nerves” was not the same as that adjudicated in the 1986 Board decision that referred to PTSD. The Court finds no merit in the argument. See Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) (holding that a single claim for disability compensation can encompass more than one condition). First, it is incongruous to argue on the one hand that the 1986 adjudication was unrelated to the 1973 claim, and on the other, to argue that the current service-connected PTSD effective-date dispute relates to the 1973 claim. If the claim relating to “nerves” is a separate and distinct claim from the claim relating to PTSD, VA‘s failure to act on the service-connection claim for nerves would have no bearing on the case here on appeal.
Moreover, as evidenced by its recitation of the procedural history of the case, the 1986 Board decision related to the same disability as that which was included in the 1973 claim—there was, at the very least, “recognition of the substance” of the prior claim. See Williams, supra. Specifically, the Board mentioned the 1974 RO decision (which Mr. Jones asserts remains pending in appellate status), the veteran‘s subsequent additions of evidence, and an unappealed, final January 1977 RO decision that determined he had not submitted new and material evidence sufficient to reopen his claim. See R. at 303. Upon reviewing evidence submitted since the January 1977 decision, the Board in its 1986 decision ultimately denied entitlement to service connection “for a ‘nervous condition’ to include [PTSD].” R. at 312. The Court is satisfied that the Board‘s 1986 decision was sufficient to put Mr. Jones on notice that his 1973 claim for VA benefits for “nerves“—which until that time had remained pending by virtue of its appellate status—was being denied. See Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009); Ingram, supra.
Consequently, because the 1986 Board decision was a final adjudication of a claim identical to Mr. Jones‘s pending appeal from the 1974 denial of benefits for “nerves,” the Court finds that the 1986 decision provided Mr. Jones the opportunity for appellate review that was not previously furnished after his 1974 NOD. In this regard, because a subsequent SOC or Board decision regarding the same disability provides the opportunity for appellate review previously withheld, the Court will extend the holdings in Williams, Juarez, and Ingram, all supra, to claims that are in appellate status by virtue of the filing of
Despite the intervening decisions, Mr. Jones counters that it is an October 1995 Board decision granting service connection for PTSD—not the 1986 or 1988 Board decisions respectively denying his claims for a nervous disorder and nervous disorder to include PTSD—that removed the original claim from its unadjudicated status. The distinction is important, he contends, because his timely appeal of the effective date resulting from that October 1995 decision “is the matter now on appeal and is part of [my] current claim stream.” Appellant‘s Brief at 6. He provides no support for such assertion in his brief nor does he explain how the 1986 and 1988 Board decisions failed to resolve the pending claim. The Court is therefore unconvinced by Mr. Jones‘s contention in this regard.
B. Reasons and Bases
In addition, Mr. Jones takes issue with the Board decision on appeal‘s failure to address evidence that he filed the 1974 NOD and the consequences of VA‘s failure to issue an SOC. The Board is required to discuss all relevant evidence and all “potentially applicable” laws and regulations. See
C. Effective Date
Having determined that Mr. Jones‘s pending 1973 claim was resolved by the 1986 Board decision, the Court must now determine whether the Board‘s effective-date determination was clearly erroneous. See Bonner v. Nicholson, 19 Vet.App. 188, 193 (2005) (noting that the Board‘s effective-date determination is reviewed under the “clearly erroneous” standard of review set forth in
Here, the claim that ultimately resulted in a grant of benefits was submitted in May 1989. Although Mr. Jones argues that the Board did not consider a 1976 VA examination in its determination as to when entitlement arose, because the effective date is the later of either the date entitlement arose or the date of the claim, the Board‘s failure to address the 1976 examination is nonprejudicial. See Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004). The effective date could be no earlier than the date of the May 1989 claim. See
III. CONCLUSION
Upon consideration of the foregoing, the Court AFFIRMS the Board‘s March 16, 2006, decision.