Joseph C. HILLYARD, Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Appellee.
No. 08-1733.
United States Court of Appeals for Veterans Claims.
Argued Oct. 26, 2010. Decided March 29, 2011.
24 Vet. App. 343
HAGEL, Judge
Michael A. Carr, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Leslie C. Rogall, Deputy Assistant General Counsel; all of Washington, D.C., were on the brief for the appellee.
Before GREENE, HAGEL, and SCHOELEN, Judges.
HAGEL, Judge:
Joseph C. Hillyard appeals through counsel a February 8, 2008, Board of Veterans’ Appeals (Board) decision that dismissed with prejudice his motion to revise or reverse on the grounds of clear and unmistakable error, a February 1987 Board decision that denied entitlement to VA benefits for an acquired psychiatric disorder. The appeal was referred to a panel because it presents a new question of law: whether a motion to revise a Board decision adjudicating a particular claim bars all future motions to revise regarding that same claim even if the theory advanced to support revision in the second motion is different from the theory advanced in the first motion. The Court finds that it does. Thus, because the Court concludes that the Board properly dismissed with prejudice Mr. Hillyard‘s motion to revise the 2008 Board decision denying his claim for benefits based on post-traumatic stress disorder, the Court will affirm the February 2008 Board decision.
I. FACTS
A. Background
Mr. Hillyard served on active duty in the U.S. Army from January to May 1975 and from November 1976 to July 1984. During service, Mr. Hillyard suffered a head injury for which he was hospitalized for two weeks.
In August 1984, Mr. Hillyard filed a claim for VA benefits for a “mental condition” caused by his in-service head injury. Record (R.) at 1695-96. In November 1984, a VA regional office denied Mr. Hillyard‘s claim and Mr. Hillyard appealed that decision to the Board. In a February 1987 decision, the Board denied Mr. Hillyard‘s claim, finding that his psychiatric disorder “is attributable to congenital and developmental origins.” R. at 1662, 1668. The Board also found that “testing on numerous occasions during service was not indicative of chronic, acquired pathology consistent with a head injury.” R. at 1668. Accordingly, the Board concluded that there was no reasonable basis on which to award Mr. Hillyard VA benefits for his psychiatric disorder.
In April 2001, Mr. Hillyard filed a motion to revise the February 1987 Board decision based on clear and unmistakable
In January 2006, Mr. Hillyard again filed a motion to revise the February 1987 Board decision based on clear and unmistakable error. In his motion, Mr. Hillyard argued that VA had a duty to sympathetically read his 1984 claim. R. at 20 (citing Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001)). Mr. Hillyard also argued that the Board failed to consider and apply
In the February 2008 Board decision currently on appeal, the Board found that once there is a final decision on a motion to revise based on clear and unmistakable error in a prior Board decision on a particular issue, that issue can no longer be challenged on the grounds of clear and unmistakable error. Accordingly, the Board determined that, although the arguments in support of Mr. Hillyard‘s January 2006 motion were different from those contained in his April 2001 motion, the arguments pertained to the same issue and therefore his January 2006 motion must be dismissed with prejudice. R. at 6 (citing
B. Appellant‘s Arguments
On appeal, Mr. Hillyard contends that the Board failed to correctly apply Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005). Specifically, Mr. Hillyard contends that a motion to revise a Board decision based on clear and unmistakable error “is defined by the specific averment of clear and unmistakable error made ... [T]he failure to aver an alternative theory for an averment of error does not waive the opportunity to present a new theory in a subsequent pleading, it only delays its adjudication when it is properly raised.” Appellant‘s Brief (Br.) at 3. Mr. Hillyard argues that, because a motion to revise based on clear and unmistakable error must be plead with specificity, “a claimant remains free to make a new [motion] for revision based on any theory not previously presented.” Appellant‘s Br. at 4. In his reply brief, Mr. Hillyard argues that the Secretary‘s regulations are not entitled to deference in this particular case because the term “issue” is not relevant to the Board‘s duty to consider and apply the rule in Andrews.
In his supplemental brief, Mr. Hillyard answered the questions posed by the Court in its July 19, 2010, order. Mr. Hillyard defines a “final decision” of the Board, pursuant to
As to the Court‘s question of whether there is a limit on the number of motions to revise based on clear and unmistakable error that may be filed, Mr. Hillyard asserts that there are no limitations other than the requirement that such allegations be specifically pled. As to the Court‘s question about the number of motions that may be filed with the Board based on different theories, Mr. Hillyard contends that “[a]n appellant is entitled to submit an unlimited number of motions to revise based on clear and unmistakable error, if each motion is based on a different theory or allegation of clear and unmistakable error.” Appellant‘s Supp. Br. at 10.
Turning to the question of whether there is a difference between motions to revise based on clear and unmistakable error filed at the regional office versus the Board, Mr. Hillyard argues that there should be no distinction. As to whether the Court must liberally interpret such motions, Mr. Hillyard contends that such a sympathetic reading is limited to the claimant‘s allegations and not allegations set forth by the claimant‘s attorney. Finally, as to the Court‘s question of what to do in a situation where the motion to revise is based on two theories of clear and unmistakable error, and the motion based on one is decided and the other basis for the motion is dismissed for lack of specificity, Mr. Hillyard argues that the claimant would be able to file a new motion for clear and unmistakable error to perfect that motion. Appellant‘s Supp. Br. at 16-17 (citing Disabled American Veterans (DAV) v. Gober, 234 F.3d 682, 699 (Fed. Cir. 2000)).
C. Secretary‘s Arguments
In response, the Secretary argues that the Court should affirm the February 2008 Board decision because Mr. Hillyard was precluded from filing another motion for revision of the February 1987 Board decision on the grounds of clear and unmistakable error by
In his supplemental brief, the Secretary argues that a “final decision” of the Board for purposes of reviewing a motion to revise based on clear and unmistakable error “is one which was appealable under Chapter 72 of title 38, United States Code, or which would have been so appealable if such provision had been in effect at the time of the decision.” Secretary‘s Supp. Br. at 2 (citing
For purposes of a motion to revise based on clear and unmistakable error, the Secretary asserts that
As to the Court‘s question of whether there is any limit on the number of motions to revise based on clear and unmistakable error that may be filed, the Secretary argues that a claimant is limited to one challenge against an issue in a Board decision. Secretary‘s Supp. Br. at 8 (citing
Turning to the question of whether the Court must provide a sympathetic reading to motions to revise based on clear and unmistakable error, the Secretary states that although this duty applies to such motions, it does not apply to pleadings filed by counsel in this context.
Finally, as to the Court‘s hypothetical of what to do in a situation where a claimant filed two motions to revise based on clear and unmistakable error, one of which was decided and one of which was dismissed without prejudice for failure to plead with specificity, the Secretary contends that
D. Oral Argument
At oral argument, Mr. Hillyard again argued that limiting the number of mo-
In response, the Secretary argues that, as is evident from VA‘s regulatory scheme, there is a distinction between motions to revise based on clear and unmistakable error that are filed at a regional office versus those filed at the Board. Specifically, the Secretary asserted that an appellant has only one chance to file a motion to revise based on clear and unmistakable error at the Board and that this principle was affirmed by the Federal Circuit in DAV. He further asserted that such a rule is in the interest of judicial economy and promotes the principles of res judicata. The Secretary also discussed the definition of “issue” as it is used in
Unless otherwise specified, the term “issue” in this subpart means a matter upon which the Board made a final decision (other than a decision under this subpart). As used in the preceding sentence, a “final decision” is one which was appealable under Chapter 72 of title 38, United States Code, or which would have been so appealable if such provision had been in effect at the time of the decision.
He further asserted that, although the term “matter” is not defined in the regulations, this definition of “issue” was also affirmed in DAV.
In rebuttal, Mr. Hillyard argued that an issue is the basis for the request for revision. He further contends that an issue is not a claim, and it is not controlled by the “issues” listed on the first page of the Board decision. He concluded by arguing that there should not be a distinction between clear and unmistakable error motions raised at the regional office or the Board.
E. Bench Order
At the conclusion of oral argument, from the bench, the Court issued an order directing the parties to submit a one sentence definition of the term “issue” with pertinent authority. Neither submission was helpful to the Court and both included certain terms in disregard of the Court‘s order. Mr. Hillyard, quoting to
The Secretary stated that:
The term “issue” is defined as a “matter” upon which the Board made a final decision which was appealable, and the term “matter” in this context refers to the finality of a decision, and the scope of each particular issue subject to attack based on clear and unmistakable error is most easily understood by reference to the first page of the Board of Veterans’ Appeals decision where each issue is set forth under the subheading “Issue” or “Issues.”
Secretary‘s Response to the Court‘s October 26, 2010, order at 1. As authority for his definition, the Secretary cites to 63 Fed.Reg. 27534-02, 27536-27757; 64 Fed.Reg. 2134-01, 2136;
A. Motion to Revise Based on Clear and Unmistakable Error in a Board Decision
A claimant may file a request to the Board to reverse or revise a prior Board decision on the grounds that the prior decision contains clear and unmistakable error.
Prior to November 21, 1997, however, there was no statutory authority allowing for a collateral attack of a final Board decision on the basis of clear and unmistakable error. Nonetheless, since at least 1928, VA regulations have provided for the revision of VA decisions that were the product of “clear and unmistakable error.” See Veterans Benefits Regulation 187, § 7155 (1928); Exec. Order No. 6230 (Veterans Regulation No. 2a) (July 28, 1933); see also Jarrell v. Nicholson, 20 Vet. App. 326, 328-29 (2006). This Court first addressed the issue of clear and unmistakable error in 1992, in Russell. In that case, the Court held that ”
It does not seem reasonable to impute to the drafters of the regulation an intent to have the [clear and unmistakable er-
ror] provision apply to Board decisions when they addressed adjudication at the [agency of original jurisdiction] level and the Board level in different parts of the regulation and mentioned [clear and unmistakable error] review only in the part governing [agency of original jurisdiction] adjudication, in a section addressing the finality of [agency of original jurisdiction] decisions.
In response, Congress enacted
Thus, in reviewing the statutory history of clear and unmistakable error in VA decisions, it is clear that there is a difference in the treatment of regional office and Board decisions, as evidenced by the different statutes that were enacted and the fact that the statutes appear in separate sections of title 38.
B. 38 C.F.R. § 20.1409(c)
To implement the statutory provisions pertaining to clear and unmistakable error, VA enacted several regulations. See 64 Fed.Reg. 2134-01 (Jan. 13, 1999). At issue in this case is
Once there is a final decision on a motion under this subpart relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of clear and unmistakable error. Subsequent motions relating to that prior Board decision on that issue shall be dismissed with prejudice.
[u]nless otherwise specified, the term “issue” in this subpart means a matter upon which the Board made a final decision (other than a decision under this subpart). As used in the preceding sentence, a “final decision” is one which was
appealable under Chapter 72 of title 38, United States Code, or which would have been so appealable if such provision had been in effect at the time of the decision.
In this case, Mr. Hillyard attempts to overcome
The Court understands Mr. Hillyard‘s confusion created by the language in Andrews, but must nonetheless find his reliance on that case to be misplaced. Although that case may indicate that a claimant can repeatedly raise clear and unmistakable error challenges to a claim finally decided in a regional office decision, it does not speak to a claim finally decided in a Board decision. As outlined above, clear and unmistakable error challenges to Board decisions are based on a different statutory and regulatory scheme than those same challenges to regional office decisions.
In this regard, the Court is bound by Disabled American Veterans. In that case, the Federal Circuit upheld the validity of
[If] a party challenged a decision on service connection for failing to apply the proper diagnostic code in the Schedule for Rating Disabilities,
38 C.F.R. part 4 , and the Board denied the motion, a subsequent motion which alleged that the Board failed to apply the presumption of sound condition at the time of entry into service,38 U.S.C. 1111 , would be dismissed with prejudice. It would be clearly important that a moving party carefully determine all possible bases for [clear and unmistakable error] before he or she files a motion.
63 Fed.Reg. 27,534, 27,538 (1998) (emphasis added). VA added that
once there is a final decision on a motion under the proposed subpart—whether initiated by a party or by the Board—with respect to a particular issue, the prior Board decision on that issue would no longer be subject to revision on the grounds of [clear and unmistakable error] and that subsequent motions on such decisions would be dismissed with prejudice.
Id. VA further explained that “because the availability of a [clear and unmistakable error challenge] does not mean that the issue may be ‘endlessly reviewed,’ we believe that one challenge per decision on an issue is justified not only as a proper statement of the law, but also as a rule serving the interests of judicial economy.” Id. (internal citation omitted).
Turning back to its decision in Disabled American Veterans, the Federal Circuit ultimately agreed with VA when, although using the terms “claim” and “issue” somewhat imprecisely, it stated:
Rule 1409(c) is neither arbitrary and capricious nor contrary to law. It simply prevents a claimant from refiling a [clear and unmistakable error] claim3 on a particular issue in a Board decision when there already has been a final decision on a [clear and unmistakable error motion] relating to that issue, as required by
38 U.S.C. § 7111(e) . That makes sense. Once a claimant obtains a final decision on a [clear and unmistakable error] claim regarding a particular issue, that claimant should not be allowed to present the same challenge again, especially since a [clear and unmistakable error] claim is, itself, a collateral attack on an otherwise final prior Board decision.
234 F.3d at 702. The Federal Circuit also reiterated that Rule 1409(c) did in fact promote “the interests of judicial economy and finality of decisions.” Id. It is presumed that, in making these determinations, the Federal Circuit read VA‘s notice of proposed rulemaking and the rationale provided for the proposed regulations. The Court also therefore concludes that, in making this determination, the Federal Circuit considered the public comments to the regulation and VA‘s responses thereto. In other words, because this Court is bound to accept the Federal Circuit‘s holding in Disabled American Veterans, we must hold that
The Federal Circuit also upheld the definition of “issue” stated in
The Court recognizes the tension that exists between the Federal Circuit‘s decision in DAV and its more recent decision in Robinson v. Shinseki, 557 F.3d 1355, 1360-61 (Fed. Cir. 2009). In that case, the Federal Circuit stated:
[E]ach new [clear and unmistakable error] theory is independent for res judicata purposes, so a narrow reading of what [clear and unmistakable error] theories were raised would work no disadvantage to the claimant, as any unraised theories could be raised in a new [clear and unmistakable error] action.
Id. (citing
C. Potential Impact
The Court recognizes that its holding may persuade individuals to delay filing requests for revision based on clear and unmistakable error to ensure that all challenges are raised on an issue. However, VA addressed this circumstance in its notice of proposed rulemaking. See 63 Fed.Reg. 27,534, 27,538. VA emphasized that “[i]t would be clearly important that a moving party carefully determine all possible bases for [clear and unmistakable error] before he or she files a motion [to revise a prior decision] under [this] subpart.” Id. The Federal Circuit favorably found that judicial economy and finality were promoted by this approach, even though such interests are not promoted in the regulation governing clear and unmistakable error challenges to regional office decisions.
Moreover, the Court recognizes that, even though the appellant is asked to define the issue on appeal on the Substantive Appeal form (VA Form 9), that it is actually the Board that ultimately defines the “issue” that it will decide. Accordingly, it is possible that the Board could attempt to foreclose a clear and unmistakable error challenge by declaring clear and unmistakable error, defining the issue, and thus precluding the appellant from being able to bring their own clear and unmistakable challenge of the underlying Board decision at a later time. See
D. Mr. Hillyard‘s Claim
In Mr. Hillyard‘s case, the “issue” in question is entitlement to VA benefits for a psychiatric disorder. The Court reiterates that the Board previously adjudicated a clear and unmistakable error challenge as to this issue in July 2001, and that decision was affirmed by the Court in September 2003. Accordingly, Mr. Hillyard‘s argument in his reply brief that the Secretary‘s definition of “issue” is not entitled to deference is entirely without merit and, in fact, directly contradicts established precedent. See DAV, 234 F.3d at 682. Further, the Board found that
The Court does recognize that, in an October 2003 memorandum decision, this Court, although affirming the July 2001 Board decision, stated that several of Mr. Hillyard‘s assertions of clear and unmistakable error were never presented to the Board and therefore were not properly before the Court, thus implying that such assertions could be raised to the Board at a later time. See Hillyard v. Principi, 18 Vet. App. 425 (2003) (table). As discussed earlier in this decision, the Court concludes that the 2003 Hillyard decision represents another example of the confusion surrounding the caselaw regarding motions to revise based on clear and unmistakable error. The Court wishes to clarify that, by its holding today, an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice.
Accordingly, Mr. Hillyard cannot seek revision of the claim decided in the February 1987 Board decision based on clear and unmistakable error as a matter of law under any theory because the Court previously determined that clear and unmistakable error did not exist on the only claim in that decision. See Russell, 3 Vet. App. at 315 (stating that the availability of a clear and unmistakable error challenge “does not mean that the same issue may be endless reviewed.“). As such, the February 2008 Board decision will be affirmed.
The Court finds it important to clarify the use of the terms that appear in this decision and decisions cited herein in the hope that these definitions will bring some uniformity to the use of these terms in future adjudications and Court decisions.
A “claim” is defined as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.”
As discussed earlier in this decision,
A “theory” is defined as a “means of establishing entitlement to a benefit for a disability,” and “if the theories all pertain to the same benefit for the same disability, they constitute the same claim.” Roebuck, 20 Vet. App. at 313; see Robinson v. Peake, 21 Vet. App. 545, 551 (2008) (“The proposition that separate theories in support of a claim for benefits for a particular disability equate to separate claims for benefits for that disability is no longer good law.“); Bingham v. Principi, 18 Vet. App. 470, 474 (2004), (distinguishing between a “claim” and a “theory” by stating that “direct and presumptive service connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely service connection.“) aff‘d 421 F.3d 1346 (Fed. Cir. 2005).
Pursuant to Black‘s Law Dictionary, a “matter” is “[a] subject under consideration, esp[ecially] involving a dispute or litigation; case.” BLACK‘S LAW DICTIONARY (hereinafter BLACK‘S) 1067 (9th ed.2009). That dictionary provides the following example: “this is the only matter on the court‘s docket today.” Id.; see also Hornick v. Shinseki, 24 Vet. App. 50, 57 (2010) (“Upon consideration of the foregoing ... the matter is remanded” (emphasis added)). In its notice of final rulemaking, VA explained why it did not provide a separate definition of matter, because “‘matter’ is not an unknown term in the context of Board decisions,” (a conclusion that has proved to be inaccurate in application). 63 Fed.Reg. 27,536. In short, the “matter” is the entire subject matter before the Court, the Board, or the regional office. Thus the scope of the matter may be different at each stage of the adjudication and before the Court.
An “element” of a claim is “[a] constituent part of a claim that must be proved for the claim to succeed.” BLACK‘S at 597. For example, in D‘Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000), the Federal Circuit held that “[a] claim for veteran‘s disability benefits has five elements: (1) veteran status; (2) existence of a disability; (3) service connection of the disability; (4) degree of disability; and (5) effective date of the disability.”
Finally, an assertion of clear and unmistakable error is a motion or a request, rather than a claim. See Rice v. Shinseki, 22 Vet. App. 447, 451 (2009) (“Motions al-
III. CONCLUSION
Upon consideration of the foregoing, the February 2008 Board decision is AFFIRMED.