Larry D. ERVIN, Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Appellee.
No. 08-3287
United States Court of Appeals for Veterans Claims.
Argued Dec. 8, 2010. Decided March 9, 2011.
24 Vet. App. 318
Accordingly, because the 1983 Board explicitly separated the adjudication of entitlement to TDIU from the adjudication of the appropriate schedular rating for schizophrenia and no subsequent SOC or decision specifically adjudicated or otherwise specifically addressed entitlement to TDIU, we have the firm conviction that the Board clearly erred in finding that entitlement to TDIU, once explicitly separated for independent adjudication, implicitly was denied by decisions on entitlement to a schedular rating for schizophrenia. See Bowling v. Principi, 15 Vet.App. 1, 6 (2001) (holding that “whether a veteran is unable to secure and follow a substantially gainful employment is a question of fact” reviewed under the “clearly erroneous” standard); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1991) (” ‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948))). Reversal of the Board finding and remand are warranted. See Padgett v. Nicholson, 19 Vet.App. 133, 146-47 (2005) (en banc) (a clearly erroneous finding may be reversed or set aside), withdrawn on other grounds, 19 Vet. App. 334 (2005), rev‘d and remanded, 473 F.3d 1364 (Fed.Cir.2007); Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate“). On remand, Mr. Locklear may present, and the Board must consider, any additional evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See
IV. CONCLUSION
Upon consideration of the foregoing, the finding of the April 22, 2009, Board that Mr. Locklear‘s entitlement to TDIU implicitly was denied by subsequent decisions is REVERSED, and that part of the Board‘s decision that denied an effective date prior to May 20, 1990, for entitlement to TDIU is SET ASIDE and the matters REMANDED for further development and readjudication consistent with this decision.
James R. Drysdale, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Richard Mayerick, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.
Before MOORMAN, DAVIS, and SCHOELEN, Judges.
DAVIS, Judge:
On July 19, 2010, this Court set aside a June 18, 2008, Board of Veterans’ Appeals (Board) decision to the extent it denied the appellant, Larry D. Ervin, service connection for a chronic acquired psychiatric disorder that had been variously diagnosed. Ervin v. Shinseki, U.S. Vet.App. No. 08-3287 (mem. Dec. July 19, 2010). The Court also affirmed the Board‘s denial of service connection for post-traumatic stress disorder (PTSD). Id. at 4-5.
On July 13, 2010, before the Court issued that decision, VA published final notice of its amendment to
I. BACKGROUND
Larry D. Ervin served on active duty in the U.S. Navy from April 1970 to December 1970. Mr. Ervin claims that while he was in basic training, he was on a tower that fell, causing him to plunge into deep water and nearly drown. He contends that this incident was extremely traumatic. Record (R.) at 73. After service, he applied for service connection for PTSD. Following an appeal of VA‘s denial of that claim, the Board, on June 18, 2008, found that the veteran has not submitted sufficient evidence to allow for verification of his claimed stressors. The Board again notes that a noncombat veteran‘s testimony alone does not qualify as credible supporting evidence of occurrence of an in-service stressor as required by
Until the 2010 amendment to
[i]f a stressor claimed by a veteran is related to the veteran‘s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran‘s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran‘s service, the veteran‘s lay testimony alone may
establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran‘s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.
75 Fed.Reg. at 39,852 (to be codified at
[(A.)] Is received by VA on or after July 13, 2010;
[(B.)] Was received by VA before July 13, 2010 but has not been decided by a VA regional office as of that date;
[(C.)] is appealed to the Board of Veterans’ Appeals (Board) on or after July 13, 2010;
[(D.)] Was appealed to the Board before July 13, 2010 but has not been decided by the Board as of that date; or
[(E.)] Is pending before VA on or after July 13, 2010 because the Court of Appeals for Veterans Claims (Veterans Court) vacated a Board decision on the application and remanded it for readjudication.
75 Fed.Reg. 39,843 (emphasis added).
If the Court determines that VA should consider the applicability of this 2010 amendment to Mr. Ervin‘s claim, the Board‘s rationale for denying service connection on June 18, 2008, would be inadequate because the amended regulation provides that a veteran‘s noncombat testimony alone can be credible supporting evidence of an in-service stressor.2
II. ARGUMENT OF THE PARTIES
Mr. Ervin argues that VA‘s amended regulation applies to his claim, and that, therefore, his lay testimony may now be sufficient to establish the occurrence of an in-service stressor. Citing Karnas v. Derwinski, 1 Vet.App. 308 (1991), he contends that, where a regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply. Appellant‘s Motion for Reconsideration at 3. He acknowledges that subsequent cases modified the holding in Karnas; however, he avers that those cases dealt with whether a new law could be applied retroactively where the law did not expressly mention retroactivity. Appellant‘s Motion for Reconsideration at 3-4 (citing Kuzma v. Principi, 341 F.3d 1327 (2003); Dyment v. Principi, 287 F.3d 1377 (2002); and Bernklau v. Principi, 291 F.3d 795 (2002)). He contends that, in this case, VA clearly intended that the 2010 amendment would have specific retroactive effect to certain pending claims, and thus, the Court should apply the law in effect at the time it renders its decision (i.e., here the 2010 amendment to
III. ANALYSIS
In determining whether the 2010 amendment applies to cases pending before the Court, precedent from the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) guides our analysis. In Kuzma, the Federal Circuit expressly overruled Karnas to the extent that its application would conflict with binding authority from the Federal Circuit or the Supreme Court. See Tarver v. Shinseki, 557 F.3d 1371, 1377 (Fed.Cir.2009). Whatever remains of Karnas, the caselaw is clear that a regulation is not to be applied retroactively unless the regulation is intended to be retroactive. See Kuzma, 341 F.3d at 1328 (“‘congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.‘” (quoting See Landgraf v. USI Film Prods., 511 U.S. 244, 272, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994))). Therefore, when a veteran‘s claim implicates a statute or regulation enacted during the pendency of that claim, the first task is to determine whether the statute or regulation expressly speaks to its temporal reach. See Landgraf, 511 U.S. at 280. It is only where the statute or regulation contains no such express command that a court must determine whether the new statute or regulation “would have retroactive effect.” Id. A statute or regulation will have an impermissible retroactive effect if its application “would impair rights a party possessed when he acted.” Id.
If VA did expressly speak to the temporal reach of the regulation, then the Court should apply the regulation as indicated by the language of the regulation. If VA did not expressly speak to the temporal reach of the regulation, then the question is whether the application of the regulation would have an impermissible retroactive effect. See id. at 280. Especially relevant here, where the intent for retroactive application is clear in a law that has changed favorably for an appellant, appellate courts are directed “to apply the law in effect at the time it renders its decision,” unless doing so would result in manifest injustice. Id. at 264 (quoting Bradley v. Sch. Bd. of City of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)); see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 226, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995); Thorpe v. Hous. Auth. of City of Durham, 393 U.S. 268, 282, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). Importantly, “[this rule] applies with equal force where the change is made by an administrative agency acting pursuant to legislative authorization.” Id. at 282.
In the instant case, the Secretary‘s intent can be determined by the language in the final rule because the Secretary expressly spoke to the temporal reach. In the final rule, the Secretary stated that the amended regulation would apply to applications for service connection for PTSD that were pending at VA on the effective date of the amended regulation, July 13, 2010, whether the cases were pending at the regional office (RO), pending at the Board, and not yet decided by the Board or pending at the RO or Board after a remand from the Court. 75 Fed.Reg. at 39,843. In addition, the Secretary concedes that the regulatory history “expressly contemplates retroactive application of the amendment.” Oct. 1, 2010, Secretary‘s Response at 3. Although the Secretary expressly made the regulation retroactive to cases pending at VA, he now argues to this Court that certain pending cases, such as those pending before the Court, are not eligible for the application of the regulation. As support, he argues that the regulation itself does not expressly state that it applies to cases pending before the Court on July 13, 2010. See 75 Fed.Reg. at 39,843. However, the Court does not take the rule‘s silence with respect to cases pending at the Court to mean that the amendment does not apply to cases before the Court. Instead, the absence of language in the final rule concerning cases pending at the Court supports the understanding that the Secretary believed he lacked authority to dictate to the Court that a certain case or group of cases be remanded for application of the regulation.
In this regard, both parties agreed at oral argument that the Secretary cannot regulate the Court‘s treatment of its pending cases. See
A conclusion that the amended regulation applies to cases pending before the Court on the effective date of the final rule is consistent with the Secretary‘s position in Kakuk v. Shinseki, No. 2010-7023, 2011 U.S.App. Lexis 2594 (Fed.Cir. Feb. 9, 2011) (nonprecedential order), which involved a final rule that expressly stated that it, too, applied to cases pending at VA on the date of publication of the final rule and was silent as to its application to cases pending at a court. There, the Secretary filed a motion to vacate the decision of this Court and to direct this Court to remand the matter to the Board and RO for consideration of a final rule affording a presumption of service connection for Parkinson‘s Disease based upon exposure to herbicides. Kakuk, 2011 U.S.App. Lexis 2594, at *1. The Federal Circuit granted the Secretary‘s motion. Id. at *2. Significantly, the final rule was promulgated on August 31, 2010, while the appeal was pending at the Federal Circuit. The final rule contained the following description regarding its application:
Applicability Date: This final rule shall apply to claims received by VA on or after the date of publication of the final rule in the Federal Register and to claims pending before VA on that date.
75 Fed.Reg. 53,202 (Aug. 31, 2010). Accordingly, language in the final rule expressly stated that it applied to claims pending on the date of the rule, and the absence of language in the final rule specifically concerning its application to cases pending at the court did not detract from application of the regulation to all pending cases, including those pending at the courts.
The Secretary next argues that the new regulation applies to decisions pending before the Court only in cases where the Court finds remandable error based on the pre-amendment regulation. Secretary‘s Response at 3. The Secretary‘s argument is based solely on the rule‘s language that “[t]his final rule applies to an application for service connection for PTSD that ... is pending before VA on or after July 13, 2010[,] because the Court of Appeals for Veterans Claims (Veterans Court) vacated a Board decision on the application and remanded it for readjudication.” See 75 Fed.Reg. 39, 843. However, the regulation contains no express requirement that the Court find an error based on the pre-amendment regulation and the Court finds no reason to imply such a prerequisite. Simply because a Board decision was “vacated” does not necessarily imply that vacatur resulted from error. See Gordon v. Principi, 15 Vet.App. 124 (2001) (vacatur and remand for Board to consider in first instance applicability of regulation and to make any required factual determinations as to whether the appellant meets the requirements of the regulation); see also Gordon v. Principi, 17 Vet.App. 221, 224 (2003) (denying the application for attorney fees and expenses under the Equal Access to Justice Act,
The regulatory history or supplementary information accompanying the final rule, while silent as to cases pending before the Court, provides some insight into the Secretary‘s intent. See 75 Fed.Reg. 39,843-852. Specifically, in revising
In addition, the regulatory history included a discussion of the “Applicability Date,” which sheds light on the concerns of the Secretary at the time of the rule‘s promulgation. 75 Fed.Reg. 39,850-51. There, the Secretary responded to commenters who “suggested that the rule
Congress has provided that, once a decision on a claim for veterans benefits becomes “final,” “the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with [title 38, U.S.Code].”
38 U.S.C. [§] 7105(c) . There are only two exceptions to this statutory rule of finality. Cook, 318 F.3d at 1339. The Secretary must reopen a previously denied claim if new and material evidence is submitted, and a final VA decision is subject to revision based on clear and unmistakable error.38 U.S.C. [§§] 5108 ,5109A , and7111 . Whether a final decision involves clear and unmistakable error is determined under the law that was in effect when the decision was made. Russell v. Principi, 3 Vet.App. 310, 313–14 (1992) (en banc). This rule was not and will not have been in effect for a claim that was finally denied before the rule‘s effective date. Therefore, VA will not apply the rule to claims that were finally denied before the effective date of the rule unless new and material evidence is submitted.
75 Fed.Reg. 39,851 (emphasis added).
Our caselaw also establishes that a claim is not finally decided where the appellant files a timely appeal from a Board denial of the claim. See e.g., May v. Nicholson, 19 Vet.App. 310, 317 (2005) (noting that “a CUE [clear and unmistakable error] claim (or any collateral attack) cannot lie as to a decision that is still open to direct review” and that “‘finality’ for the purposes of the availability of judicial review is not the same ‘finality’ that enables an appellant to file a CUE claim or other collateral attack” (emphasis omitted)). Cases currently pending on appeal before the Court are not final until “the expiration of the time allowed for filing a [N]otice of [A]ppeal” from the Court‘s decision in the case or at a later date if a timely appeal is taken.
The Court notes that despite a procedural similarity, this case is distinguishable from the circumstances in Bernklau, supra, which addressed section 3(a) of the
Unlike section 3(a) of the VCAA, the regulatory history accompanying the July 2010 provisions at issue here expressly speaks to the provision‘s temporal reach, and, as conceded by the Secretary, “expressly contemplate[s] retroactive application of the amendment.” Given the stated purpose of the amendment, and given that the Secretary has clearly stated that the amendment to
In so holding, the Court is not persuaded by the Secretary‘s contention that, because he promulgated the regulation, we should afford deference to his current position before the Court. The Secretary‘s interpretations of his rules and regulations will only be given deference as long as they are not inconsistent with the regulation or otherwise plainly erroneous. Smith v. Nicholson, 451 F.3d 1344, 1349 (Fed.Cir.2006). The Secretary may not attempt to subvert the plain language of the regulation simply by adopting a litigating position contrary to it. See Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (holding that agency positions adopted in response to litigation, or those adopted as a “‘post hoc rationalization’ advanced by an agency seeking to defend past agency action against attack”
Finally, because we have determined that the Secretary‘s intent to give a general retroactive application to the regulation is clear, the three-part test prescribed in Princess Cruises, Inc. v. United States — used for determining whether a regulation would have an impermissible retroactive effect if applied to cases pending at the time a regulation was promulgated — is not for application. See 397 F.3d 1358 (Fed. Cir.2005);4 see also Rodriguez v. Peake, 511 F.3d 1147 (Fed.Cir.2008) (holding that application of three-part test in Princess Cruises was appropriate to determine whether the amended regulation, which did not speak to the temporal reach of the regulation and which eliminated claims for dependency and indemnity compensation benefits under the “hypothetical entitlement” theory, has an impermissible retroactive effect, and holding that the amended regulation did not have an unlawful retroactive effect under that test and, therefore, applying it to cases pending at VA at the time the amended regulation took effect).
Additionally, while the Court recognizes the questions raised by the parties with regard to the continuing viability of the Court‘s holding in Karnas, supra, the Court concludes that reaching that issue in this case is unnecessary. The Court applies Landgraf, Bradley, and Thorpe in deciding that the newly amended regulation applies to Mr. Ervin‘s claim; consequently, the Court need not resolve the parties’ dispute regarding Karnas.
IV. CONCLUSION
On consideration of the foregoing, the July 19, 2010, Court decision is WITHDRAWN and this opinion is issued in its stead. The Court SETS ASIDE the Board‘s June 18, 2008, decision and REMANDS Mr. Ervin‘s service-connection claim for PTSD for further development and readjudication consistent with this opinion.