The pro se appellant, veteran Richard S. Henderson, appeals a September 22, 1994, decision of the Board of Veterans’ Appeals (Board or BVA) denying his claims for Department of Veterans Affairs (VA) service connection for respiratory disorders, including chronic obstructive pulmonary disorder and asthma, for a cardiovascular disorder, including hypertension as secondary to a respiratory disorder or a psychiatric disorder, and for a psychiatric disorder, including post-traumatic stress disorder (PTSD); the Board also concluded that new and material evidence had not been presented or secured to reopen his previously disallowed claims for service connection for a right-foot disorder, for a knee disorder, and for a right-hand disorder; and the Board found that his claim for service connection for a right-shoulder disorder was not well grounded. Record (R.) at 11, 28. The Board also referred to a VA regional office (RO) a claim related to 38 U.S.C. § 1151 (1994) (providing benefits for persons injured or disabled as a result of VA treatment) and claims for service connection for basal cell carcinoma, blinding headaches, and a back disorder, and instructed the RO to inquire of the veteran whether he was seeking an increased rating for his service-connected prostatitis and hepatitis. R. at 9. Both parties have filed numerous pleadings related to several interlocutory issues and each party filed a brief and the appellant also filed a reply brief. For the reasons that follow, the Court will vacate the Board’s decision in part and remand as to all matters on appeal.
I. Procedural History
The appellant served on active duty in the U.S. Army from July 1945 to September 1948 and from October 1948 to August 1950, with additional periods of active duty for training in 1950 and 1952 to 1956. See R. at 9, 203, 205. In September 1957, he filed an application for VA service-connected disability compensation for, inter alia, an injury to his right foot, an injury to his right index finger, and for knee disorders. R. at 226-29. An April 1958 RO decision, inter alia, denied service connection for knee, right-index-finger, and right-foot disorders. R. at 250-52. That decision was apparently never appealed.
In April 1990, he filed a statement in support of claim in which he sought to have his “claim for serviee[-]connected disability reopened due to worsening of [his] condition”, stating also that he was treated for hypertension in service and that he was presently having heart problems. R. at 256. In June 1990, the RO denied service connection for hypertension and a heart condition. R. at 258-60. He filed a Notice of Disagreement (NOD) in July 1990. R. at 264.
In February 1991, he filed a statement in support of claim in which he identified numerous claims, including service connection for hepatitis, a back disability, feet and hand injuries, injuries to his ribs and knees, angina secondary to pulmonary disorder, sinusitis and rhinitis, PTSD, and hypertension. R. at 379-85. A March 1991 RO decision denied service connection for respiratory and nervous conditions. R. at 482-83. A May 1991 letter to the veteran from the RO noted that service connection for a right-foot condition, a right-hand condition, and a knee disability had been previously denied; the RO requested additional evidence. R. at 490. Later •that month, the veteran filed a putative NOD as to the May 1991 “conclusions” (R. at 493), but the RO informed him that because he had not filed an NOD within one year after the 1958 decision denying those claims it could take no action absent new and material evidence (R. at 496). However, the RO apparently later accepted the May 1991 “NOD” as putting into appellate status the questions whether the veteran had submitted new and material evidence on the foot, hand, and knee conditions. See R. at 507-12 (Statement of the Case).
A February 1992 Board decision remanded for further development the issues of service connection for a heart condition and hypertension claimed as secondary to a pulmonary condition and/or a nervous condition, instructed the RO to determine whether an appeal of the denial of the foot, knee, and hand claims had been perfected and whether the veteran wished to pursue any other of the issues identified in his various pleadings. R. at 582-85. In an April 1992 letter to the
In January 1993, the veteran submitted a statement from Dr. Vlahos stating that he had treated the veteran for 27 years for “acute pharyngitis, vasomotor rhinitis, sinusitis and otitis”, that those conditions “ha[d] their origin and exacerbation while the patient was in the service”, and that “Mr. Henderson developed chronic obstructive pulmonary disorder as an end result”. R. at 697. In a February 1993 statement, the veteran noted, inter alia, that the RO had not addressed his malpractice claim. R. at 710. In another statement received by the RO in February 1993, he stated that the issues on appeal were: (1) a left-knee injury, (2) right-index finger, right-hand, and right-shoulder injuries, (3) hearing loss, (4) back pain, (5) chronic obstructive pulmonary disorder, (6) prostatitis, (7) a psychiatric disorder secondary to his pulmonary disorder and/or a PTSD claim, and (8) blinding headaches; further, he asserted that his respiratory disorder was caused by a failure of a VA medical examiner to warn him of nasal blockage detected in an examination. R. at 723, 726, 731. The veteran then filed a VA Form 9 (Substantive Appeal to the BVA). R. at 748-51; see also R. at 994-95; 1094.
In July 1993, the RO concluded, inter alia, that the April 1958 RO decision denying service connection for a back condition had not been the product of clear and unmistakable error (CUE). R. at 928. A December 1993 RO decision continued the denial of service connection for PTSD. R. at 1024-28.
In the September 22, 1994, BVA decision on appeal, the Board denied the veteran’s claims for service connection for respiratory disorders, including chronic obstructive pulmonary disorder and asthma, for a cardiovascular disorder, including hypertension, and for a psychiatric disorder, including post-traumatic stress disorder (PTSD); the Board concluded that new and material evidence had not been presented or secured to reopen his claims for service connection for a right-foot disorder, for a knee disorder, and for a right-hand disorder; and the Board found that his claim for service connection for a right-shoulder disorder was not well grounded. Record (R.) at 11, 28. The Board also referred to the RO the claim related to 38 U.S.C. § 1151 and claims for service connection for basal cell carcinoma, blinding headaches, and a back disorder, and instructed the RO to inquire of the veteran whether he was seeking an increased rating for his service-connected prostatitis and hepatitis. R. at 9.
The appellant filed a Notice of Appeal (NOA) on April 6, 1995. In addition to the merits issues decided by the Board in its September 1994 decision, the appellant sought to appeal a March 22, 1995, decision by the Board Deputy Vice Chairman denying his October 1994 motion for reconsideration of that September 1994 Board decision; the appellant also raised a number of interlocutory issues, including that the record on appeal (record) was incomplete, that the Board Deputy Vice Chairman had no authority to deny his motion for reconsideration, and that the BVA decision on appeal was improperly rendered by a single Board member. In a May 30,1997, order, the Court dismissed the appeal as to the BVA Deputy Vice Chairman’s denial of the motion for reconsideration but sought additional briefing on the authority of the Deputy Vice Chairman to render that decision. Henderson v. Brown,
The Secretary has moved to strike the appellant’s arguments based on references to “materials” in the appellant’s appeal of the BVA Deputy Vice Chairman’s denial of his motion for reconsideration. Response at 1-2. In our May 30, 1997, order the Court dismissed the appellant’s appeal of that denial. Henderson I,
II. Analysis
Because the Court has held in abeyance the appellant’s contentions regarding the effectiveness of the BVA Deputy Vice Chairman’s denial of his motion for reconsideration and the appropriateness of a single-member Board decision in his case, the Court will first address those matters. For the reasons that follow, the Court concludes that the BVA Deputy Vice Chairman possessed authority to act upon the veteran’s motion for BVA reconsideration and that the 1994 BVA decision on appeal was not invalid on the ground that it was rendered by a single member.
A. Authority to Delegate Decision on Motion for BVA Reconsideration
On March 22, 1995, the BVA Deputy Vice Chairman denied an October 31,1994, motion for BVA reconsideration of the September 22, 1994, BVA decision. That denial stated: “[T]he Board’s decision of September 22, 1994, was consistent with the facts established by the evidence of record at that time. It was also consistent with the law in effect at that time.” The denial further stated: “The reasons or bases for the determination reached were clearly stated in the Board’s decision. I find the rationale for the decision is completely reasonable and fully consistent with the evidence of record.” The appellant contends, in sum, that the authority to rule upon motions for BVA reconsideration is committed by statute solely to the BVA Chairman; the appellant also contends that the decision’s statement of reasons or bases was inadequate. For the reasons that follow, the Court disagrees.
1. Jurisdiction to Decide Issue. First we must decide whether we have jurisdiction to entertain the appellant’s challenge on this point. See Barnett v. Brown,
2. The Appellant’s Contention as to the Court’s Lack of Jurisdiction Over his Appeal. As we have concluded, if the appellant is correct that his October 1994 motion for reconsideration is still pending before the Board, then his April 1995 NOA is invalid, and we have no jurisdiction to review his contentions as to the September 1994 Board decision. Section 7103 of title 38, United States Code, provides:
(a) The decision of the Board determining a matter under section 7102 of this title is final unless the Chairman orders reconsideration of the decision in accordance with subsection (b). Such an order may be made on the Chairman’s initiative or upon motion of the claimant.
(b)(1) Upon the order of the Chairman for reconsideration of -the decision in a ease, the case shall be referred—
(A) in the case of a matter originally heard by a single member of the Board, to a panel of not less than three members of the Board; or
(B) in the case of a matter originally heard by a panel of members of the Board, to an enlarged panel of the Board.
(2) A panel referred to in paragraph (1) may not include the member, or any member of the panel, that made the decision subject to reconsideration.
(3) A panel reconsidering a case under this subsection shall render its decision after reviewing the entire record before the Board. The decision of the panel shall be made by a majority vote of the members of the panel. The decision of the panel shall constitute the final decision of the Board.
(c) The Board on its own motion may correct an obvious error in the record, without regard to whether there has been a motion or order for reconsideration.
38 U.S.C. § 7103(a), (b), (c). Section 512(a) of title 38, United States Code, provides:
Except as otherwise provided by law, the Secretary may assign functions and duties, and delegate, or authorize successive redelegation of, authority to act and to render decisions, with respect to all laws administered by the Department, to such officers and employees as the Secretary may find necessary. Within the limitations of such delegations, redelegations, or assignments, all official acts and decisions of such officers and employees shall have the same force and effect as though performed or rendered by the Secretary.
38 U.S.C. § 512(a) (emphasis added). This law provides broad authority for the Secretary to delegate authority, extending to power to delegate “authority to ... render decisions, with respect to all laws administered by the Department”. Ibid (emphasis added). The Court finds no indication that 38 U.S.C. § 7103 is an exclusive grant of authority by Congress to the BVA Chairman to reconsider BVA decisions. See, e.g., 38 U.S.C. § 7103(e) (“Board on its own motion may correct an obvious error in the record”); 38 U.S.C. § 7101(b)(4) (“Secretary shall designate one member of the Board as Vice Chairman [and] ... Vice Chairman shall perform such functions as the Chairman may specify.”); see also 38 U.S.C. § 503 (Secretary’s authority to order equitable relief even where decision is otherwise final under 38 U.S.C. § 7104(b) and BVA Chairman has not ordered reconsideration under section 7103). Moreover, the Court can find nothing in the broad language of section 512(a) — or otherwise in title 38 — that limits the Secretary’s broad delegation authority to those powers expressly granted to him; that section specifically states “[e]xcept as otherwise provided by law, the Secretary may ... delegate ... authority to act or render decisions, with respect to all laws administered by the Department” (emphasis added); see also 38 U.S.C. § 501(a) (“Secretary, has authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and
Because the Court has thus concluded that the Secretary possessed authority to delegate the BVA Chairman’s reconsideration authority, the only question remaining as to the threshold arguments discussed in this part is whether that delegation authority had been exercised at the time that the BVA Deputy Vice Chairman rendered his decision in March 1995. The Court concludes that it had. Then existing regulations specifically provided that the Vice Chairman and the Deputy Vice Chairmen could exercise the Chairman’s reconsideration authority under 38 C.F.R. § 20.1001(c) (1994):
(b) The authority exercised by the Chairman of the Board of Veteran’s Appeals described in Rules 608(b), 717(d), and 1001(c) (§§ 20.608(b), 20.717(d), and 20.1001(e) of this part) may also be exercised by the Vice Chairman of the Board and by the Deputy Vice Chairmen of the Board.
38 C.F.R. § 20.102 (1993). The present version of § 20.102(b) is the same. Thus, section 512(a) gave the Secretary authority to delegate the Chairman’s reconsideration authority, the Secretary did so in § 20.102(b), and the Deputy Vice Chairman had authority to rule upon the veteran’s motion for BVA reconsideration.
The appellant’s reliance upon the Appointments Clause, U.S. Const, art. II, § 2, cl. 2 (“Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments”), is inapposite. Although the Court agrees that Board members and the Vice Chairman are “inferior officers” of the United states who must be appointed in accordance with the appointments clause, see Buckley v. Valeo,
Accordingly, the Court concludes that it has jurisdiction over the appeal to the Court as to the October 1994 BVA decision because the veteran’s September 1994 motion for BVA reconsideration was lawfully disposed of by the BVA Deputy Vice Chairman and hence is no longer pending at the Board.
Finally, although the Court, in its May 30, 1997, order, has already denied review of the BVA Vice Chairman’s denial of reconsideration, the Court notes, in response to the appellant’s contentions, that it finds no infirmity in the “reasons or bases” articulated by the Deputy Vice Chairman in his denial of the veteran’s motion for BVA reconsideration. Assuming, without deciding, that such a reasons-or-bases obligation attaches, see 38 U.S.C. § 7104(d) (“[e]ach decision of the Board shall include ... a statement of the Board’s findings and conclusion, and the reasons or bases for those findings and conclusions” (emphasis added)); Mayer v. Brown,
B. Authority for Single-Member BVA Decision
We thus move to review of the September 1994 BVA decision appealed here. As a threshold matter, the appellant contends that, because the February 1992 BVA decision remanding his claims for additional development was made by a three-judge panel of the Board, the rendering of the September 1994 decision by a single member of the Board was invalid because it gave impermissible retroactive effect to section 6(a) of the Board of Veterans’ Appeals Administrative Procedures Improvement Act of 1994, Pub.L. No. 103-271, § 6(a), 108 Stat. 740, 741 (1994) (amending 38 U.S.C. § 7102(a) and providing, inter alia, that proceeding before Board may be assigned to single member). That law was effective on its date of enactment, July 1, 1994. Henderson I,
The veteran’s appeal to the Board was pending when Pub.L. No. 103-271 was enacted. As the Court noted in our May 30, 1997, order in this case, Henderson I, supra, “[a]s to cases pending at the time a new law becomes effective, the Supreme Court has held that before applying such a statute courts must determine whether the statute would ‘impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed’ ”. Henderson I, supra (quoting Landgraf v. USI Film Products,
On its face, Public Law 103-271 does not increase a party’s liability or impose new duties; thus, the only reason not to apply that law to the pending case would be if it “impair[ed a] right[ ] [that the] party possessed when he acted”, Landgraf, supra. In our May 30, 1997 order in this case, the Court noted: “It seems well established that ‘because rules of procedure govern secondary conduct rather than primary conduct, applying them to cases pending on their effective date does not violate presumptions against retroactivity’ and that such new rules are applied ‘even where they work to the disadvantage of defendants in pending cases’”. Henderson I,
As an additional matter, the Court notes that in Kamas v. Derwinski, this Court ruled that “where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should and we so hold will apply unless Congress provided otherwise or permitted the [Secretary] to do otherwise and the Secretary did so”. Karnas,
Accordingly, the Court concludes that the fact that the September 1994 BVA decision was rendered by a single Board member does not render it invalid. Having concluded that neither the disposition of the motion for reconsideration nor the Board decision itself here on appeal presents an impediment to the Court’s reaching the merits, we now proceed to the merits.
C. Merits Issues
The Board decision on appeal denied the veteran’s claims for service connection for a respiratory disorder, for a cardiovascular disorder, and for a psychiatric disorder; the Board concluded that new and material evidence had not been presented or secured to reopen his claims for service connection for a right-foot disorder, for a knee disorder, and for a right-hand disorder; and the Board found that his claim for service connection for a right-shoulder disorder was not well grounded. Record (R.) at 11, 28.
1. Matters Not on Appeal. The Court has previously dismissed the respiratory-disorder claim. Henderson III,
2. Matters on Appeal. The Court therefore concludes that the following five matters are properly before it: Service connection for a psychiatric condition and for a cardiovascular disorder; whether new and material evidence has been presented or secured to reopen the previously disallowed claims for service connection for a knee and a right-hand disorder; and CUE claims in connection with disallowed claims for service connection for hepatitis. The Court will address each in turn.
a. Psychiatric condition: The Secretary concedes that the Court should remand the appellant’s claim for service connection for a psychiatric disorder, including PTSD, because the Board failed to provide an adequate statement of reasons or bases for rejecting the results of a November 1992 “assessment stemming from incidents he was involved in during WW IP’ that diagnosed PTSD. R. at 884. The Court agrees. See 38 U.S.C. § 7104(d)(1); Simon,
The Court will thus vacate the Board’s decision as to that matter and remand it for readjudication. The Court further notes, as did the Secretary in his brief, that on October 8, 1996, while this appeal was pending here, VA issued a final rule amending that portion of its Schedule for Rating Disabilities pertaining to mental disorders. 61 Fed.Reg. 52,695 (1996) (to be codified at 38 C.F.R. pt. 4); Cohen (Douglas),
b. Cardiovascular claim: The veteran’s claim for service connection for a heart condition, including hypertension, is based on a theory of secondary service connection derived from either the veteran’s respiratory disorders or an asserted psychiatric disorder. Because the RO has now awarded service connection for the veteran’s respiratory condition, his claim for secondary service connection for a psychiatric disorder derived from the now service-connected respiratory condition will be remanded to the Board for readjudication in light of the RO’s decision. As to the appellant’s claim for secondary service connection of his heart condition, as derived from a psychiatric condition, the Secretary contends that the claim for service connection for a cardiovascular disorder should be remanded because new diagnostic criteria pertaining to the cardiovascular system were adopted during the pendency of the appeal. See 62 Fed.Reg. 65207 (1997); Karnas, supra. However, the Board concluded that there was “no medical evidence relating any heart disease or hypertension to service or to his service-connected disabilities” and “no evidence of cardiovascular disorder in service, or within one year after separation therefrom”. R. at 24. The Board also concluded that, because it had denied service connection for a psychiatric disorder, service connection for a cardiovascular condition claimed as secondary to a psychiatric disorder was not warranted. R. at 24-25. The Court need not decide whether remand is appropriate here — in a ease where the veteran appears to lack medical evidence of nexus to service — to address the new cardiovascular diagnostic criteria because in the instant matter the veteran’s claim for service connection for a cardiovascular disorder is inextricably intertwined with his claim for service connection for a psychiatric disorder, which the Court has, in part II.C.2.a., above, now decided to remand. In Harris v. Derwinski, the Court held that where the BVA referred to an RO a heart-disorder claim that was “inextricably intertwined” with a claim for an increased rating for anxiety neurosis, the Board’s decision on the anxiety-neurosis claim was not final. Harris v. Derwinski,
c. Knee and hand claims: In this case, the Board found that there was no new and material evidence to reopen the previously disallowed knee and hand claims, citing Colvin v. Derwinski,
d. CUE claims: The veteran claimed CUE in a 1949 RO decision denying his claim for service connection for hepatitis. R. at 620-21. He filed a timely Notice of Disagreement (NOD) (R. at 783) on March 4, 1993, as to the RO’s December 8, 1992, and February 4, 1993, decisions rejecting both the CUE claim on the 1949 RO decision and, sua sponte, any CUE claim on a 1958 RO decision; he also filed a substantive appeal on June 21, 1993. R. at 907. The veteran also claimed CUE in the 1958 RO decision’s denial of his claim for service connection for a back disorder. He filed a timely NOD on December 19, 1993 (R. at 1079), to the July 14, 1993, RO decision denying that claim (R. at 928-29). These three CUE claims were thus placed in appellate status and were not abandoned by the veteran in his appeal to the Board. Indeed, in a June 1993 substantive appeal (VA Form 9) to the BVA, he expressly reiterated those claims. R. at 908. Hence, he. had a right to a BVA decision as to those CUE claims, and the BVA ignored them in its September 1994 decision. See Archbold v. Brown,
III. Conclusion
Upon consideration of the foregoing analysis, the record on appeal, and the parties’ briefs, the Court vacates the BVA decision in part and remands as to the denial of the appellant’s claims for service connection for a psychiatric disorder, including PTSD, and for a heart condition; as to the denial of his claims to reopen the previously and finally disallowed claims for right-knee and right-hand disorders, see 38 C.F.R. § 3.156(a); Hodge,
VACATED IN PART AND REMANDED.