*1 TYRUES, Appellant, Larry G. SHINSEKI, Secretary of K.
Eric Affairs, Appellee.
Veterans
No. 04-0584. Appeals States Court
United
for Veterans Claims. 9, 2008. Sept.
Argued 2, 2009. Oct.
Decided
Nishа Wagle, C. with whom Paul J. flut- ter, Counsel; Acting General R. Randall Campbell, Counsel; Assistant General E. Moriarty, Deputy Joan Assistant Gen- Counsel, D.C., eral all of Washington, were on the brief for appellee. GREENE,
Before Judge, Chief KASOLD, HAGEL, MOORMAN, LANCE, DAVIS, SCHOELEN, Judges.
MOORMAN, Judge:
appellant, Larry
Tyrues,
G.
through
counsel,
7, 2004,
seeks review
April
of an
(Board)
Board
Appeals
of Veterans’
deci
disability
sion that denied
compensation
for a lung disorder as a
disability
chronic
because the evidence did
support
finding that
it resulted from an undiag
nosed illness and therefore did not warrant
service connection
presumptive
on a
basis
under 38
parties
1117. Both
briefs,
filed
and the appellant
reply
filed a
15, 2005,
brief. On November
the Court
affirmed the Board’s decision and held that
it did not have
to review a
September 1998 Board decision that de
nied the appellant disability compensation
Nicholson,
Tyrues
on a direct basis.
v.
(table),
Vet.App. 231
timely, and the Court Tyrues’s enti- 7266(a). of Mr. 7252(a) the matter remanded §§ to 88 U.S.C. suant *3 connection for tlement to service below, the set forth the reasons For includ- development, further for disorder Secretary permissibly that the holds medical records of ing procurement deny- a final decision and issued processed to obtain a examination and a VA con- service based on direct ing benefits respirato- of his claimed diagnosis current nection, for the consider- remanded and in a determina- disability and to assist ry upon presumptive benefits based ation of lung current disor- tion as whether decisions, in connection, in service active periods his of was related to der that be- further hold and 2004. We directed The Board R. at 155. service. сon- on direct service benefits based cause region- development, VA following finally were decided nection (RO), deci- if it an adverse al office issued timely appeal- that was not Board sion, Tyrues with a Mr. provide should ed, in the reopened and considered nor the Case Statement Supplemental decision, we lack jurisdiction Board (SSOC) to the Board. return the case and for ser- the denial of benefits now review month, the RO following R. at 156. dis- a direct basis. As connection on vice his Tyrues that it had received notified Mr. below, will fully the Court more cussed based on his Persian claim benefits for dismiss, part jurisdiction, lack of requested further Gulf War service Sep- finally in the appeal decided An April R. at 163-65. evidence. will and we 1998 Board tember Compensation Pension Examina- RO Board now decision of the the 2004 vacate had noted that Board tion Worksheet ad- the matters appeal and remand Tyrues from Mr. remanded adjudication further therein for dressed with the re- compliance directed opinion. with this consistent Tyrues’s Mr. claim for service mand as to lung disorder due to “for a connection R. at 168. service.” Persian Gulf War I. FACTS Tyrues that Mr. “has noted The RO also in the duty on active Tyrues served Mr. [(service include his claim to amended s/c April September Army U.S. loss, connection)] joint, memory aching May 1971, 1990 to September and from R. at 168. a stomach condition.” [and] (R.) He served Record at 16-17. 1991. medical examination A 1997 VA May 1990 to Gulf from November the Persian com- 1994, then-present report Mr. at 17. In identified 1991. R. March April disorder, lung Mr. plaints hospitalized for treatment Tyrues was memory loss. R. at 190. joint pain, and R. at refractory pneumonia and tonsilitis. Tyrues as diagnosed Mr. The VA he VA bene- examiner sought 227. In March Syndrome Gulf having Possible Persian basis of “1. lung disability on the fits for breath, joint pain, and 112. In with shortness direct service connection. R. feet Degenerative arthritis memory loss. hearing VA following a December valgus deformity.” Hallux lung symp- with bilateral suggestion his officer’s opined “[i]t The examiner includ- R. at 191. complaints, and various other toms but, he did my part, only speculation warrant aching joints, ing sore to his ser- lung prior disorder Mr. not have Syndrome,” for “Persian Gulf now.” Gulf as he does vice in Persian on that Tyrues sought service 146-47,150. Id. well. R. at basis as 20, 1998, April
On the RO issued a deci- Septеmber denied denying sion service connection lung disability compensation based on direct disorder, which the RO noted was a “re- service connection for a lung disorder be- manded issue.” R. at 242. In its discus- cause it found that the matter well disorder, sion of the lung specifi- RO grounded, and remanded to the RO the cally stated that “service connection for a disability issue compensation based on on a disorder direct basis remains presumptive service connection for an un- that, addition, denied” and “service con- diagnosed illness manifested shortness *4 lung problems, nection for diagnosed on of breath for further development to in- VA breath, examination as shortness as clude an additional VA medical examina- due to an undiagnosed illness is denied.” tion. R. at 265-76. The Board discussed R. at 243. The RO also denied service the evidence of pertained record as it connection for three separately other iden- symptoms chest, of the lung and including tified -joint pain as due to an conditions— colds, congestion, and flu-like symptoms, illness, undiagnosed memory loss as due to and discussed evidence pulmo- regarding illness, undiagnosed and stomach con- nary tests, sounds, function breath any dition as due to an undiagnosed condition. pulmonary pleural abnormalities, or as (1) The RO concluded that the'joint pain well diagnoses as pneumonia. R. at was determined to result from known clini- 269-70. The Board did not any refer to diagnoses cal degenerative arthritis of symptoms other than those involving the feet, shoulder, tendonitis of the right lungs. chest and The Board did not make strain; and lumbar memory loss any reference to joint pain, stomach was not shown with symptoms chronic of a condition, and memory loss. See R. at certain duration within requisite peri- that, 265-75. The Board instructed in re- od; and the stomach condition was gard matter, to the remanded the VA med- determined result from a known clinical ical examiner should render an opinion diagnosis of syndrome. irritable bowel R. whether, for each symptom alleged by at 243-45. The record on appeal does not Mr. Tyrues, the symptom is attributable to any contain subsequent document from a “known” clinical diagnosis, light Tyrues RO, Mr. to the or from the RO to history findings, examination Tyrues, Mr. as to these three conditions. and, sо, identify examiner should See R. at 1-402. diagnosed disorder opinion and render an 20, 1998, On April the RO notified Mr. as to etiology its and date of onset. R. at Tyrues that it was returning to the Board 274. At the time it rendered the 1998 the matter of service lung connection for a decision, the Board Tyrues furnished Mr. disorder and enclosed an SSOC that dis- notice concerning appellate rights, his cussed “service connection for lung dis- which included notification that he could R. at order.” 248-54. The SSOC reiterat- appeal the decision regard to matters the findings ed in the rating contained that had not been remanded. R. at 275- decision of the same denying bene- date — Tyrues 76. did Mr. not file a Notice of fits for a lung disorder aon direct basis (NOA) Appeal of this Board decision. for lung problems, diagnosed as short- breath, ness of as due to an In undiagnosed Tyrues December Mr. under- illness. R. at 254. Mr. Tyrues responded went a VA second examination. atR. 285- stating SSOC that the issue in 87. this The examiner Mr. Tyrues’s reviewed case is entitlement to service connection claims and opined file history “[t]he R. at disorder. veteran, obtained the claim folder ato symptoms the identified indi- to attribute findings
review, and the examination disorder, so indi- he should diagnosable chronic probably the veteran cate that or not “whether and also indicate gets when he cate” bronchitis, worse gets which to Gulf War service.” could be related at 287. this dust, R. paint, etc.” exposed Mr. In at 372. October R. Mr. 2000, the Board denied February In exam- VA medical an additional underwent disability compensation Tyrues’s claim (not examiner ination, VA by a different dis- breath as chronic for “shortness stat- which the examiner Plump), after Dr. ill- resulting from ability not have Tyrues “does that Mr. ed the evidence ness” because found signs symptoms[,] problems, respiratory ser- presumptive not establish did record time_In aller- he is my opinion at 313. December R. vice connection. and these vapo[r] paints certain gic to February 2000 vacated are not symptoms respiratory occasional the matter and remanded Board decision in Gulf exposure of fumes to the related joint parties’ to the pursuant to the *5 2004, the Board April 370. In R. at War.” The R. at 339. See for remand. motion R. at appeal here. the decision issued Tyrues Mr. provide that ordered VA Court 1-12. it ac- and that examination a respiratory development any notification complish II. ANALYSIS Assis- the Claims required under Veterans (VCAA), 106- Pub.L. No. Act of 2000 tance Appeal the Scope A. In De- R. at 340-41. 114 Stat.2096. the Parties 1. Position a VA underwent Tyrues Mr. cember the ex- during which examination that the Court argues appellant The aminer, diagnosed Mr. Plump, Dr. 1998 September the to review jurisdiction awith bronchitis” having “mild as chronic service denied decision that both Board stated refractory pneumonia and history a direct lung disorder on connection the opinion patient’s his “medical presump the issue of and remanded basis undiagnosed due to an of breath shortness undiagnosed for an connection tive service the likely to as due is at least illness of breath. by shortness manifested illness at 350. service.” R. Gulf War the Board 1998 appellant asserts decided the same claim” Develop- decision “concerns Case July the Board’s In here on Board April the decision (CDU) Dr. that because ment Unit found at 5. (App.Br.) Brief Appellant’s symp- appeal. Tyrues’s Mr. Plump had attributed decisions because both contends that to an He both chronic bronchitis toms to claim, i.e., con the service illness, the De- same results of address the disorder, not lost he has lung incon- were nection 2001 VA examination cember September the appeal right was his sistent, development additional con denying direct decision service a fur- Board It ordered R. at 365-66. needed. because, Derwin Harris v. It nection under examination, examiner. by another ther (1991), it have (1) ski, would must that the examiner new directed file an premature to he been disorder to which identify diagnosed the finally decid Board’s prior symptoms; decision Tyrues’s any of Mr. attributed service matter of his entitlement ing diagnosis; and render his explain in the basis presumptive date etiological basis and opinion as to the 5; Br. at App. Board decision. April R. at disorder. diagnosed of onset of such that a Harris, (holding at 183 1 Vet.App. Or, was “unable if the 371-72. examiner decision, that both April thus, denied one claim the and remanded a jurisdiction second was not final Court has Sep- review the because the denied claim inextricably was tember 1998 Board decision. claim).
intertwined
the remanded
hand,
The Secretary, on the other
ar-
During
argument,
oral
the appellant
gues that
there
separate
are two
claims
maintained that he
seeking compensa-
was
involved here —a claim for entitlement
is,
disability,
tion for one
a disability
service
diagnosed
connection for a
disabili-
(or
i.e.,
resulting
lung problem
from a
ty,
diagnosed
condition,
dis-
under
ability
lung),
related to his
provisions
and that there
§
of 38 U.S.C.
11101 and a
separate
are two
theories of entitlement
claim for entitlement
to service connection
compensation
VA
for his lung disorder:
for an undiagnosed disability under
presumptive service connection
provisions
under sec-
of 38 U.S.C.
1117.2 Secre-
tion 1117 and direct
tary’s
service connection.
Br. at 18-20. He asserts that
support
argument,
of his
claims involve two
legal and fac-
Roebuck,
argued that under
supra,
tual bases for entitlement
to service con-
finality
September
1998 Board deci-
nection.
Id. He contends that
the Court
sion, which he
incorrectly split
contends
lacks
to review the 1998 Board
appellant’s
claim for service connection
decision because the NOA was filed with
based on two
etiology,
theories of
years
September
after the
5%
suspense”
“held in
until
the Board issued
1998 Board
long past
120-day
*6
38, U.S.Code,
amination,
provides
1. Section 1110 of title
laboratory
and
tests cannot be at
compensation
basic entitlement to
for a dis
any
diagnosis.”
tributed to
known clinical
ability resulting
injury
from an
or disease
1,
(2004).
Principi,
Vet.App.
v.
19
7
Gutierrez
duty
contracted in the line of
in active mili
provides
Section 1117
for entitlement to com
1110;
tary
§
service. 38 U.S.C.
see 38 C.F.R.
pensation
presumptive
on a
basis to a Persian
3.303(a) (2009)
§
(provides compensation for
Gulf War
complains
having
veteran who
of
an
particular
injury
“a
resulting
or disease
(or
undiagnosed illness that is
illnesses that
disability
was
[that]
incurred coincident with
are)
disabling during
pre
or more
10%
service”).
In order to establish entitlement to
sumptive period
by
Secretary.
established
disability,
direct service connection for a
1117(a)(1)(A)
(B);
§
38 U.S.C.
rez,
see Gutier
(1)
appellant
"competent
must show
evidence
definition,
Vet.App.
By
19
at 6.
section
disability [by way
of current
aof] medical
only provides compensation
symp
1117
for
(2)
diagnosis”;
aggravation
“incurrence or
of
disability
toms of a chronic
that have not been
injury
[by
a disease or
way
lay
service
of]
diagnosis.”
attributed to a "known clinical
evidence”;
(3)
or medical
“a nexus be
3.317(a)(1)(h) (2009);
§
38 C.F.R.
see Stanke
injury
tween the in-service
or disease and the
Nicholson,
470,
(2006)
vich
Vet.App.
v.
19
472
disability [by way
current
of] medical evi
("The very
essence of an
illness
Brown,
498,
Vet.App.
dence.”
7
Caluza
Gutierrez,
diagnosis.”);
is that there is no
19
(1995),
curiam,
604,
per
506
78 F.3d
aff'd
(a
(Fed.Cir.
at 10
1996) (table);
Persian Gulf War veteran’s
3. Roebuck Board issues Joyce a final [and, decision all denying theories In resolving the question, the Fed circumstances, u]nder those 120-day eral Circuit’s remand of the instant case requirement filing a[n NO will not A] suggested that specifically we consider two begin to run until the Board has denied recent We decisions. first consider this all in support theories of the claim that Roebuck, decision in supra, Court’s where it has identified for consideration. the Court addressed the finality of a Board Roebuck, decision. The Court added).
The Court held that the first Board deci another of the same claim. To read where, was not sion final “in unique the Roebuck more broadly a creates new ex- (1) presented, circumstances” ception to the finality rule of ignores and bifurcated its of decision Mr. Roebuck’s the fact that explicitly Roebuck was based claim, lung disorder denied con service unique on circumstances. nection for a lung disorder under a nico Thus, dispositive Roebuck is not dependence tine theory, and “stated regardless here issue of ap- whether the that it would ‘prepare separate a decision pellant is sepa- deemed have two filed addressing [the issue]’ service connec First, rate claims or one claim. if we
tion for a lung disorder under an asbestos appellant assume the sought for benefits exposure theory.” Id. at 316. separate two diagnosed disabilities —a
The Roebuck Court held that disorder, lung pneumo- described as both when a bronchitis, claimant raises more than one nia and and an theory in of a support during claim chronic condition manifested by shortness Cir- to the Federal appealed The of his to be result alleged
of breath cuit. Gulf—Roebuck in the Persian service in the Court because inapposite simply disagreed as to Joyce in parties The claim. there was one that ease found that for single a claim—one there was whether Gober, 315-16; Elkins v. also see
Id. at
ei-
that
is established
connection
service
(hold-
(Fed.Cir.2000)
1369, 1376
F.3d
оf sound-
through
presumption
ther
“[bjecause
‘particular
...
each
that
ing
aggravation—
presumption
or the
ness
as dis-
may be treated
claim for benefits’
for service
claims—one
separate
or two
veter-
a
purposes,
jurisdictional
tinct for
The
aggravation.
and one for
connection
separable
treated as
may be
an’s claims
it need
that
stated
Federal Circuit
Second,
appel-
if we assume
appeal”).
underlying claims
view of the
which
decide
a
support
in
two theories
lant raised
under either view
because
correct
was
benefits
claim for VA
single
finality.” 443 F.3d at
lack of
is a
“there
service
condition—direct
if
concluded that
The Federal Circuit
849.
connection available
presumptive service
claim,
by the
review
only single
there is
facts are
veterans —the
Gulf
Persian
War
because
was unavailable
Federal Circuit
here
Roebuck because
distinguishable
satisfy the
did not
test
remand order
re-
a final decision
the Board issued
Principi, 275
in Williams
announced
service
upon direct
benefits based
gard to
(Fed.Cir.2002), which held that
F.3d
connection,
RO
remanded
may review nonfinal
the Federal Circuit
upon pre-
based
of benefits
consideration
were met.
conditions
if three
remand order
connection,
in
whereas
sumptive service
Federal Cir-
at
443 F.3d
Joyce,
theory and
Roebuck,
one
denied
separate
were
there
cuit stated
issue a sec-
that it would
expressly stated
aggrava-
for service connection
claims
theory.
the second
ond Board decision
Elkins,
applica-
tion,
was
229 F.3d at
ble,
“assertedly
claims
Circuit’s
the Federal
We next consider
both
because
inextricably intertwined
are
supra, which held
Joyce,
in
decision
the same disabili-
compensation
where
was not final
decision
our
Federal Circuit
at 850. The
ty.” 443 F.3d
in
part,
reversed
had affirmed
our Court
“[rjeview of the Veterans
concluded
a Board decision
part
and vacated
part,
the service connec-
decision as to
Court’s
error
and unmistakable
no clear
finding
Elkins
under
be-
is unavailable
tion claim
(CUE)
denying disabili-
decision
in an RO
orderly process
‘disrupt
would
cause
remanding
benefits and
ty compensation
” Id.
of adjudication.’
443 F.3d
849-50.
to the Board.
matter
Federal Circuit’s
conclude that the
determi- We
the Board’s
Our Court affirmed
Roebuck,
does
Joyce,
similar
finding
as to the RO’s
nation of no CUE
before the
question now
not answer
presumption
soundness
*9
reviewability
Joyce discussed
deter- Court.
reversed the Board
rebutted. We
by the Federal
this Court
of
of
finding that
decisions
in the RO
mination of no error
finality
did not discuss
Joyce
had been Circuit.
aggravation
of
presumption
jurisdictional
a Board decision and
regulation
applicable
rebutted under
reviews
which this Court
basis on
to determine
for the Board
and remanded
Federal Circuit
Joyce,
In
de- decisions.
error was outcome
whether the RO’s
decisions
review of
noted: “Our
expressly
deni-
vacated
Board’s
terminative. We
for Veterans
Appeals
of the Court
readjudica-
for
remanded
al of
and
CUE
§ 7292.
by 38 U.S.C.
governed
is
question. Claims
tion on the service-connection
im- Mr.
explicitly
While that statute does not
argument
Elkins’s
the medical
pose
judgment
a final
requirement, we
evidence regarding his headaches
es
also
‘generally
have nonetheless
declined to re-
tablished a claim for service-connected
view nonfinal orders of the Veterans
pain.
neck
explained
The Federal Circuit
prudential grounds.”
Court’ on
443 F.3d that
in deciding
could treat
Williams,
(quoting
at 849
F.3d at
separable
claims as
appeal,
on
it was
1363). Accordingly, the Federal
in
Circuit
adopting
approach
in Dewey Electron
Joyce did not review or interpret
the stat-
States,
Corp.
ics
v. United
803 F.2d
utes from which this Court
its
derives
(Fed.Cir.1986).
The Federal Circuit
7252(a)
jurisdiction
§§
—38
consideration,
stated that
relevant
“[t]he
in
7266(a). To the extent Joyce
argued
to determining
whether
ad
administrative
instructive,
it did not resolve the issue
judication
sufficiently
‘final’ is “whether
claims,
of one claim versus two
instead
process
of the administrative decision-
finding
approach
either
yield
would
making has
stage
judicial
reached a
where
And,
the same result.
it did not resolve
review will
disrupt
orderly
process
the issue of whether a decision deemed
adjudication
and whether rights or obli
final
regard
the Board with
to one gations have
determined
legal
been
con
claim
theory supporting
or one
a claim for
sequences will flow from the agency ac
benefits, and for which
appellate
notice of
” Elkins,
tion.’
176
subject
separate
a final decision
ap
stitutes
to consider
jurisdiction
has
Court
conclusion is
more of those is
Our
concerning
one or
Court.3
peal
Brown,
See,
in Elkins
e.g.,
recognition
Grantham
with the
sues.
consistent
(Fed.Cir.1997) (ele
1156, 1158-59
statutory
F.3d
of ad
process
“unique
that VA’s
sequen
appealed
a claim
ments of
necessarily require
does not
judication”
for Veter
Appeals
of
tially to
Court
U.S.
all at once.
issues to be resolved
different
Gober,
Claims);
Barrera v.
see also
ans
Elkins,
In mer
Against on different stat- questions, tinct are based denying VA disabil- a final Board decision rely on different utory provisions, or ity compensation upon based direct ser- disability may have the unin- causes of a connection, vice while the consideration — encouraging the Board tended effect upon presumptive based service benefits mat- delay making a determination adjudication, under con- connection is still theory separate a final decision on the recognizes the Federal Circuit’s 3. The Court also presumptive service connection. See Bingham v. 421 F.3d decision in (exer Peake, (Fed.Cir.2005), all theo- D’Aries v. which held that cising jurisdiction appeal of Board deci disposed over connection were ries of service connection for cause denied sion that denied service the Board decision there had when while claim for DIC of veteran’s death even Unlike the factual cir- service connection. however, separate denied in a Board decision Bingham, presented in cumstances decision); separate An remanded in a a claim for service where the Board denied West, WL theory drews v. one and was silent as connection on connection, (table) (exercising jurisdiction in the theories of service other case, denying bene appeal of Board decision specifically remanded over present while thereby on direct service connection development, fits based secondary service connec foreclosing any argument denial of benefits based that its being adjudicated). interpreted tion were still connection could be direct service *11 until all fully ter are developed matters process.” deliberative Id. The Court stat- case, ready disposition. for In such a ed: if the Board decides one matter and re- A decision the RO grant appel- matter, mands another when the remand- lant’s referred heart disorder claim ed ready matter is later for the Board’s could a significant have impact upon ap- (after disposition all instructions re- on pellant’s claims for an increased rating fulfilled), mand have been the Board would anxiety This, for turn, neurosis. in required its revisit could render review by this of Court first matter that currently ensure the decision on the anxiety neurosis complies with all law regulations. It claim meaningless and a waste of judi- unlikely spend the Board will its сial resources. resources adjudicating the first matter if Id. at 183. Accordingly, the Court deter- law, that were the might piecemeal mined that review could render very well decide that it would be more a decision on one claim “meaningless” and delay any efficient to adjudication until all would be a judicial “waste of resources.” benefits, claims for or theories in support Id. The Court noted that the evidence in benefits, a claim for ready were support both claims was “replete with decision. The veteran would thus be de- statements the veteran’s mental state nied the opportunity judicial review of was a physical condition,” result of his an adverse decision until all issues ad- further noted that the crux of the appel- dressed the Board decision or all possi- lant’s claim benefits was that “his heart ble bases for supporting a claim for bene- disorder [was] cause of anxiety his fits have finally been decided. Such neurosis.” Id. Because the claims ap- outcome would serve neither the veteran peared closely “so tied” together, nor the VA’s in providing interest a timely Court concluded that the Board decision award of benefits achieving final resolu- did not constitute final decision and dis- tion of claims. missed jurisdiction. for lack of
5. Reviewability Finality Versus Id. a Board Decision The Harris court determined The Court recognizes holding by Court’s that a the Court that claims are decision Harris discussed this inextricably i.e., Court’s where a re intertwined — jurisdictional statutory requirement of a ferred claim could have a significant im “final Board question decision” and the pact on a denied claim being ap when a Board appealable. decision is 1 pealed dismissal appeal. —mandates Hams, Vet.App. at 181-83. In the Court The today overrules Harris to the held that a Board decision that denied extent it stands for the proposition that increased rating for anx jurisdiction service-connected this Court has no over a Board iety neurosis was not a final decision over decision that denied a claim if that claim is which this jurisdiction Court had because “inextricably intertwined” with another was “inextricably intertwined” claim that the Board remanded. The with a claim for service connection jurisdiction Cоurt has over such matters heart disorder that the Board had referred appeal, direct but to exer decline to the RO. Id. at 183. The Court Har cases, cise its in such as we ris stated that it would See, neither frequently review e.g., do. Hunt v. Nichol son, Board decisions a piecemeal (2006) (de “in fashion 20 Vet.App. 525-26 nor unnecessarily interfere with the clining to [VA] review denial of entitlement
178 by finally decided yet theory not or re claim benefits rehabilitation vocational issue VA.4 readjudication because for manding “inextricably inter dependent was on— this today, that make clear We remand, whether, on twined” with— Board de to review jurisdiction Court’s for ser a claim grants reopens and Board by not a claim is controlled denying cision Harris, connection) supra); (citing vice is by the Board denied the claim whether West, 367 11
Anglin v. another with intertwined” “inextricably dis (1998) for a bladder (remanding claim or re remanded was either that claim medical evi was order, there for which the RO because Board to by the ferred to a back it was connected that dence are so two underlying the claims facts in “inextricably it because was problem, Rather, this Court’s together. closely tied condi for back with a claim tertwined” by whether is controlled jurisdiction (citing remanding) was the Court tion that i.e., de a “final issued Board decision”— Brown, Vet. v. Harris, Holland supra); or a a claim denying by either nied relief (1994) Board (holding that a 443, 447 App. of a claim support theory in specific for rating an increased denying decision appel of with notice the claimant provided is arthritis rheumatoid service-connected 7266(a); Per see rights. 38 U.S.C. late “aRO referred to though Board final even Shinseki, 45-46 v. cy on rheumatoid rating claim” based TDITJ “juris term imprecise use of (noting “may not because referred arthritis regulations); and VA in caselaw dictional” appeal”). claim on necessarily affect the Russell, 551 U.S. also Bowles see Hams, hold that we now Overruling 2360, 2365-66, L.Ed.2d 96 S.Ct. to be a purports decision where a in limits jurisdictional, (defining as of issues notice the Board final what condi under as when statute timely and the rights, appellate case). holdWe may hear a a court tions Court, juris this Court has appeals to that determines after only that for Board decision review diction to in engаge does then jurisdiction it has review, However, re the Court error. concerning questions consideration at the determine tains discretion to its multiple involves appeal whether or denied that a claim threshold inextricably inter are or issues that claims portion or in such decision matter find that If we twined. inextricably is so on review aof inextricably intertwined appeal be pending still with matters intertwined VA, the before pending still or claim to VA issue remanded that it should be fore VA decline, reasons generally will of a Court disposition or development to await Per- in the diagnosed based on service Judge illness expressed Contrary to the view so, permit- have would not opinion, we observe Gulf. If Hanis Hagel sian his Derwinski, over an decision Harris have this Court’s this Court to ted (1991), implicated, and its days 1998 deni- Vet.App. 180 filed within appeal regardless of whether necessary, discussion to re- jurisdiction now permit but would al claims. involves claim two this one case part the current as the 1998 denial view are hold that there Even this Court were connection of service of the denial here, Hanis dictates involved two claims provisions for Persian presumptive under determine, appeal, whether part this as we determination Because a War veterans. Gulf connection for for service the "claim” inextricably inter- are to whether claims denied on a direct basis condition properly determine does twined "inextricably intertwined” with 1998 is aspect we overrule jurisdiction, Court’s presumptive service "claim” of Hanis. resulting an un- disability for a chronic *13 claim, judicial economy prudential or on grounds, or whether the Board erred in issu- to review the merits of the claim ing or issue the denial or limitation of benefits that adjudicated in the Board decision then be- appealed. Parties are well-served by Court, fore the and remand it for further process that allows the Court review adjudication, appropriate, (1) as with the other assertedly final decisions to determine “inextricably intertwined” matters still be- whether one issue on which the Board ing adjudicated below. denied inextricably benefits is intertwined with other issues that the Board remand- today’s decision, Following a claimant ed, whether such a Board decision will no longer presented be with the dilem- reversed, modified, should be or the mat- ma of whether he should appeal or risk remanded, ter error, based on Board in- having right appeal his vitiated for fail- law, cluding misapplication of the failure to See, timely appeal. ure to e.g., Gurley v. develop record, a complete or other defects (2007). 573, Nicholson 20 Vet.App. 575 n. 1 that would otherwise not be addressed for It is not the province Court’s to dictate years thereafter. By a timely veteran’s implements statutory how VA its authority appellate exercise of rights, errors the dispose in appeals timely and effi- Board early corrected as in the long cient manner so as it permissibly does process possible, as rather than many controlling so within Ramsey statutes. See later, years when proceedings remand on a separate matter are completed. Claimants (“The general authority Secretary of the clear, not satisfied with a final decision of interpret apply the relevant law and of Board, accompanied the by notice of their the Board to dispose appeals timely in a appellate rights, appeal any should such manner Secretary authorizes the to man- (or timely manner request age the dispositions Board its of cases reconsideration) Board preserve those and to consider the relevant law in its appellate rights. A claimant should under- control dispositions of the appeals the stand that “Board denial” on the issues pending on the Board’s docket and to do so coupled with a appellate rights notice of effort.”). economy with of time and means “file an appeal or the denial be- While it does not fall to this Court to final,” comes because it is in the control of design or redesign adjudication the YA claimant, not the Court or the Secre- process, province it is our to consider a tary, appeal whether to once the Board timely appeal from a claimant who has filed, issues its decision. If an appeal is been denied relief based on theory, one the Court will finality determine issues of has received notice of appellate rights, his and whether the issues or claims are inex- argues and who that the Board erred in tricably case-by-case intertwined on a ba- See, issuing the denial. e.g., Colo. River (or sis. Failure of a appeal claimant to States, Water Conservation Dist. v. United reconsideration) risk, presents seek 800, 821, 424 U.S. S.Ct. us, we see the case before (1976) (Stewart, J., L.Ed.2d 483 joined by finally matters decided will Stevens, JJ., Blackmun dissenting) not be appealable appeal after the time to (“[Fjederal courts have a ‘virtually unflag- passes. ging obligation ... jurisdic- exercise the Finality September B. The ”). case, given tion them.’ In such a 1998 Board Decision can then determine whether inextricably benefits denied or limited are September intertwined with a remanded issue or of appel- considered issues was be- concerning an issue which ment to benefits entitlement
lant’s agency directly through Board was filed with fore the disability based either un- No- of service-connection on or after presumption original two Board took 1117. The ap- der section date that 1988.... The vember for bene- to his respect actions consti- the face of this decision pears on First, benefits Board denied fits. copy and the mailing the date of *14 tutes to service on entitlement based is you have received this decision (“The 272 basis. R. at on a direct your action taken on your notice of the to service connection for entitlement Ap- of Veterans’ by the Board appeal denied.”). on a direct basis lung disorder do not attach to Appellate rights peals. “no that there was determined The Board remand addressed those issues linking the evidence competent medical decision, because portion of the Board’s on a direct lung current disorder veteran’s prelimi- nature of a a remand is in the (R. 267), and thus at to service” basis and does not constitute nary order (R. “well-grounded”5 found that issue Board on the merits of decision of the 271). Second, the Board remand- at 20.1100(b) § 38 your appeal. C.F.R. ed, development, entitlement for further (1997). § 1117 connection under 38 U.S.C. service above, the Board quoted R. at 275-76. As by short- disorder manifested for a chronic rights appellate noted that the specifically breath, due to ness matter that was not attach tо the did illness, secondary Gulf War ser- to Persian remanded, only “pre which constituted Board that it R. at 272. The stated vice. Board, that a liminary” of the whether there decision [was] was “unclear claimed a decision of support the veteran’s remand “does not constitute evidence to or whether symptoms your appeal.” on the merits of respiratory the Board therefore, diag- notice, affiliated with a symptoms are R. at 276. The Board’s and directed the RO illness” appellate nosed that the appellant informed the Gulf examination. a VA Persian schedule pertained to the Board’s denial rights at 273-74. R. disability on a lung connection for a service basis, that was not as the matter direct decision, the 1998
At the time of
R. at 276. This is consistent
remanded.
final and so
its denial
Board considered
that the Board’s
with the Court’s caselaw
At the time the
appellant.
notified
claim is not an
remand of a veteran’s
decision,
September
its
1998
Board issued
over which the Court
adverse final decision
follows:
appellant
notified the
Principi,
See Acosta v.
jurisdiction.
had
APPELLATE RIGHTS:
NOTICE OF
Breeden,
(2004);
17
...,
§ 7266
a deci-
38 U.S.C. []
Under
appellant
The
was thus
Vet.App. at 475.
Appeals
of Veterans’
sion of the Board
Septem
considered the
on notice
VA
benefit,
complete
granting less than
Board to be a final
1998 decision of the
ber
benefits,
appeal-
sought
or
direct service connection for
decision on
days from
within 120
Court]
able to [the
that the
disability. The Court notes
of notice of the deci-
mailing
the date of
any argument that
sion,
does not raise
Disagree-
appellant
a Notice of
provided that
9, 2000),
106-475,
(Nov.
provided that
Stat.2096
in effect in 1998
5. The law
re-
to eliminate the
grounded”
amended section 5107
"well
in order
claims must be
Luyster
well-groundedness. See
develop-
quirement of
duty
in their
VA’s
to assist
invoke
Gober,
(2000) (per
Vet.App. 186
curiam
5107. The Veteran's
ment. See 38 U.S.C.
order).
No.
Act of
Pub.L.
Claims Assistance
challenges either
sufficiency
of the no-
edly final decision denying benefits from
appellate
tice of
rights accompanying the
the Board should timely appeal that deni-
receipt
Board
or his
of that deci-
al, regardless of whether other claims or
receipt
sion or his
of appellate
notice
issues remain
pending,
they run the
1-16;
rights. See
Br.
App.
Reply Br. at
of finding years
risk
later that in failing to
1-7.
appeal they
thereby
have
forfeited their
did not file an NOA of the
appellate rights concerning the earlier de-
September
Board’s
1998 decision within
Here,
cision.
rather
than protecting his
days
of the date that YA mailed notice
rights
appellate
at the time of the 1998
September
1998 decision to him nor
the appellant waited and
did he seek reconsideration from the
only filed an NOA
April
after the
Peake,
See
Board.
Reed v.
thus that be- concluded ser- CDU denying R. at Board April 2004 incon- to be findings appear basis “these presumptive on a cause vice connection resulting must disability sistent, examination a chronic another symptoms military ordered illness from then Id. The CDU scheduled.” Gulf. for a VA in the appellant Persian service VA schedule indicated examination Gulf Persian August Merits C. be scheduled with appellant “must that the Decisions Board the examiner other than an examiner April to the regard With 12/13/01, Id. Plump.” Dr. only decision, argues Board it had July erred because time of the CDU’s At the 19.9, clari to seek duty, part: under 38 C.F.R. in relevant provided, § 19.9 request, December Plump’s of Dr. fication evidence, clarifi- (a) If further General. “before[,] or in addition opinion medical evidence, of a correction cation ex VA medical to,” additional ordering an defect, action is other procedural 10. He contends Br. at App. amination. appellate proper essential VA that, an additional ordering el of Members pan Member or *16 seeking in of сlarification lieu examination may: its opinion, VA violated Plump’s Dr. of of (1) agency Remand the case At oral Br. at 10-12. App. duty to assist. the ac- jurisdiction, specifying original assert appellant for the argument, counsel undertaken; or to be tion for an additional request that VA’s ed (2) to under- personnel Board Direct nar “impermissibly medical examination proper the action essential take Plump’s of Dr. VA’s consideration rowed” decision. appellate appel and that opinion December 2001 (2002). to seek by VA’s failure prejudiced plain The lan- § lant was 19.9 38 C.F.R. be opinion Plump’s Dr. clarification limit the Board § 19.9 does not guage of evidence was favorable opinion evidence, cause his nor clarification of seeking clarified, that, have substantiated could “mandatory adopted the Court has for service appellant’s § 19.9 that interpretation clarification” of an symptoms basis presumptive aon in his brief. Rath- appellant advances undiagnosed illness. er, contemplates situations regulation may choose to obtain the Board in which provid- that noted in Board’s CDU requiring instead “further evidence” opin- VA 2001 medical ing the December evidence; and, existing clarification veteran that ion, Plump “found Dr. the Board that well established it is of mild diagnosis from known suffered whether fur- to determine the discretion opinion bronchitis, but offered an chronic to make is needed development ther breath due veteran’s ‘shortness that the 19.9(a) § 38 a claim. C.F.R. least as illness undiagnosed [was] addition, disregards the Court’s current view 337, (1996). our dissent’s App. 339-40 judicial review of prompt providing to recon- difficult colleagues’ view is role current deny v. opinion in Brokowski relief to veterans cile with their recent decisions Board (exer- 79, (2009) Shinseki, Vet.App. 86-90 to a 23 role reduced would have Court’s affirming deci- jurisdiction and Board cising small, light hope at the end of flickering though even date issue to effective sion as of- processing tunnel seemingly endless appro- of an the issue Board had remanded adjudications. VA characterizes ten Significantly, the rating). priate disability (2002); West, Principi, pose.”); 169, 172 see v. 16 Vet. Rose v. 11 Vet.App. Shoffner (2002); West, App. Winsett (noting that “it is not the function of (1998) (“[Wjhether judicial review simply to accord the gov particular Board chooses to refer a case ernment a remand to obtain ... evidence” independent opinion for an medical is en appellant’s rebuts the showing of a discretion.”); tirely within its see also 38 nexus between injury his in-service and a 7109(a) (the § seek an diagnosed current disability). advisory opinion medical when such an In its April 2004 opinion “is warranted the medical com found that VA “ha[d] made reasonable and involved”); plexity controversy appropriate efforts to assist the 3.304(c) (2009) (“The develop C.F.R. in obtaining the evidence necessary to sub- ment of evidence connection with claims stantiate the claim currently under consid- for service connection accomplished will be eration, to include several VA examina- necessary.”). when deemed R. tions.” at 4. regard With to Dr. However, equally it is well established Plump’s December 2001 opinion, develop gather VA must claims and the Board noted “that despite the finding evidence a neutral manner. See Austin undiagnosed of an relating respi- illness Brown, ratory symptomatology, noteworthy (“[BJasic play requires fair that evidence that the examiner did indeed offer a specif- procured by agency in an impartial, ic diagnosis of mild chronic bronchitis.” manner.”). unbiased, and neutral In seek R. at 11. The Board diag- found that “[a] ing opinion, a medical “may sug VA nosis of both an illness and a gest an answer or limit inquiry the field of diagnosed condition pertaining to the same *17 Brown, by the expert.” Bielby v. 7 Vet. symptoms is inconsistent.” R. at 11-12. 260, (1994); App. Colayong 268 see v. West, 524, Plump Dr. rendered following opin- 12 the Vet.App. (holding 534 ion in request the RO’s December 2001: to a VA medical examiner to “feel free to the private refute 1) DIAGNOSIS: Mild chronic bronchi- physician’s report” fatally flawed and 2) capacity tis. Diffusion and spirome- compromised adjudica the fairness of the 3) try within normal Refractory limits. Moreover, process). tion “VA not pneumonia March 1994. pursue ... development purpose is provider’s OPINION: It is this medical against obtain evidence the claim.” opinion patient’s shortness of Hart v. Mansfield, 21 508 breath due an undiagnosed illness is (2007); see v. Principi, Mariano 17 Vet. at likely least as as not due to the Gulf (2003) (“Because App. 312 it would not providеr War service. This is unable to be permissible for VA to undertake such opinion render an as to the etiological development additional if a purpose was to basis of the disorder and its date of case, obtain against appellant’s evidence an onset. provide VA must an adequate statement of R. at 350. reasons or pursue bases for its decision to development Accepting further where develop such the Board’s view that Dr. ment reasonably could be Plump’s diagnosis opinion construed as and are incon- sistent,7 obtaining additional evidence pur- wholly for that it is why unclear the Board nosis, Although possible Board’s view is that Dr. the Court notes that it also is Plump’s opinion diag- Plump diagnose ap- is inconsistent with his that Dr. intended to a claimant to under- to enable adequate be a new medical provide that VA directed for the Board’s examination, precise seek clari- basis simply than stand rather It is Plump’s opinion. review of Dr. as well as facilitate fication directed why Court”). nec- equally Accordingly, unclear remand is by provided examination that the new essary. Dr. R. Plump. than” “other an examiner remand, view the Board’s given and On at 365. are diagnosis opinion and Plump’s that Dr. ex adequately failure to The Board’s inconsistent, seek the Board either must leaves the for its order the reasons
plain Plump’s Dr. December clarification reasoning; to its speculate appel indicating that the opinion reasonably includes speculation such manifested lant had an illness was to avoid purpose that the possibility resulting from Per of breath shortness Plump. from Dr. opinion possible favorable service; or, pro the Board must sian Gulf Austin, supra; See permitted. This is statement, adequate well-reasoned vide a Rose, Hart, Mariano, all su also see review, explaining the Court’s to facilitate circumstances, these Under pra. clarification. not to seek such its decision of reasons or bases Board’s statement that VA must further ensure The Board Mariano, See inadequate. requirements with the notice complied (‘VA provide adequate state must 5103(a). Mayfield See of 38 U.S.C. or bases for its decision ment of reasons (Fed.Cir. 444 F.3d where such development pursue further 5103(a) 2006) notifica (holding that section reasonably could be con development aggregation tion not satisfied obtaining additional evidence strued as which notices from pre- postdecisional Caluza, Vet.App. at 506 purpose.”); infer have been able to might a claimant (the statement of reasons Board’s On re lacking). found what VA for the evidence for its must “account bases mand, persuasive or to submit addi it finds to be is free evidence which credibility analyze arguments unpersuasive, evidence and to raise his tional evidence, “pro Board, probative required value” Board is to the and the rejection for its of’ vide the reasons Principi, See Kay them. consider *18 appel favorable to the (2002). material evidence 529, 534 lant). of Dr. rejection The Board’s opin 2001 VA medical Plump’s December III. CONCLUSION
ion, or ade seeking without clarification analysis and a foregoing on the Based why such quately explaining clarification the Board’s the record on appeal, review of unnecessary, frustrates re appellate 7, 2004, April decision VACATED Brown, v. Allday view. See (the presumptive claim for ser- (1995) appellant’s Board’s statement undiagnosed an chronic vice for for its “must connection reasons or bases decision system.” respiratory 38 U.S.C. having mild bronchitis lower pellant as both chronic 1117(a)(2)(B), Plump’s opinion (g)(8). Dr. § undiagnosed illness manifested not be read as inconsistent. need Pursuant 38 U.S.C. therefore of breath. shortness having diagnosing as governing compensation for disabili- Read § Veterans, chronic bronchitis and occurring both in Persian Gulf War ties illness, "medically Dr. unexplained” an un- or compensation is available for either evidence Plump’s opinion would be favorable "medically unexplained diagnosed illness or illness,” appellant's claim for service support in multisymptom manifested chronic undiagnosed illness. for an symptoms involving upper or “signs condition alleged to be the result of service the matter was fully developed, and in the Persian Gulf under 38 U.S.C. remanded matter for readjudication for REMANDED proceedings subsequent further adjudication of the initial consistent with PTSD); this decision. rating for appel- Peake, D’Aries v. lant’s appeal as to finally (2008) matters decided Vet.App. 97 (exercising jurisdiction in September 1998 Board decision is over appeal of Board decision that denied for jurisdiction. DISMISSED lack of service connection for cause of veteran’s death even while claim for DIC was de MOORMAN, Judge, opinion filed the of nied in separate Board decision and re KASOLD, the Court. Judge, filed a manded in a separate decision); separate concurring opinion. HAGEL, West, Andrews 16 Vet.App. Judge, filed a opinion concurring (1999) (table) WL 44307 (exercising juris in the result and dissenting in part. diction over of Board decision de LANCE, Judge, filed a separate opinion nying benefits based on direct service con concurring part in and dissenting part, nection while benefits based on secondary SCHOELEN, in which Judge, joined. service connection were still being adjudi cated). KASOLD, Judge, concurring: The Court also claim, has bifurcated a fully
I
concur
the well-reasoned opin-
parts
affirming
of a Board decision related
ion of the Court and I write separately
to a claim for benefits while remanding for
only to highlight
the following three
adjudication
further
other matters stem
points:
ming from the same
See,
decision.
e.g.,
1. The
Opinion
Court’s
Barringer
Peake,
Is
(2008)
Consistent
With Our Precedent and
(affirming Board
Jurisdic-
with regard
tional Statute.
ratings
schedular
and effective date and
remanding
adjudication
of extraschedu-
Any suggestion that
opinion
today is
consideration);
lar
Palczewski v. Nichol
way
some
a shift
prior
from our
case-
son,
remanded award of benefits. for which another matter was its decision and stated benefits denied on Direct Evidence that 2. Assertions to hear jurisdiction
final, lacked the Court Fully Not Was Connection final Service declared the matter over appeal the Time Today, at Developed we Vet.App. at 183. the Board. of Speculative. Are Harris and Decision of Board part correctly overturn jurisdiction have indeed we do hold that suggests opinions concurring One of benefits that denies Board decision over a decision 1998 Board September is decision final its Board states when service- Tyrues’s direct Mr. that denied timely appealed. is decision and that disability could claim for of may, reasons However, the Court not was evidence that based on have been remand economy, nevertheless judicial however, fully developed; properly with the adjudication a decision for such allegation is note that should readers adjudica- administrative still under matter facts; it any by reference unsupported inextricably inter- matters are if the tion Moreover, very pure speculation. Id.; Gurley see also twined. re- development suggestion inadequate (recogniz- n. 3 should Mr. fact that inforces the faces with the claimant a ing dilemma timely a decision in the 1998 appealed have timely Board appeal whether question it, so satisfied with if he was not manner right appeal having his or risk review could appellate that effective timely appeal). vitiated for failure rendered a decision Review conducted. raised exception implicitly other certainly ignores years ago over 10 Roebuck, which, at ante as noted that an Congress mandate from unique set circumstances involved be taken within decision final Board concluded such § 7266. that decision. days of was denying matter Board stating it the Board’s decision despite final on Predicated Is Jurisdiction 3. Our the claimant had fact final and the Adversely Board Decisions Final when to how and provided notice been a Claimant. Affecting Roebuck I concur that Although appeal. tried to define Although the Court precedential from our distinguished can be Rice, 22 see purposes, all a “claim” jurisdiction had where the Court cases is fruit- such effort for which notice Board decisions over final is over final jurisdiction less. Our provided, been rights has of appellate 38 U.S.C. affecting benefits. decisions is indeed that Roebuck recognized must be West, see, 7252, 7266; Maggitt e.g., §§ Any characteriza- exception thereto. (Fed.Cir.2000). 1370, 1376 202 F.3d a new today’s opinion establishes tion that our caselaw limits Nothing statute or recent sin- elevates the concept finality claims, or on final decisions Roebuck, rendered el decision gle pan juris- of our context defines the otherwise circumstances, above the exceptional all *20 Board decisions final diction over understanding of this Court’s consistent reasonably a claim. Can aspects of circum- nonexceptional in the jurisdiction of benefits the denial argued that a final Board renders where the stances a theory is on one disability based a theory supporting on one decision A affecting benefits? final Board adju- for further benefits and remands be entitled very well might veteran that is the claim based part dication by benefits based on the denied “claim” depending differs on what stage in Board, require him to wait 10 the process administrative one attempt- is years or more ing decision is to define a stage claim—at the when a wholly contrary statutory filed, to our jurisdic- “claim” is or at the final stage when a tion, which jurisdiction is the “exclusive to “claim” is denied. regard With to our however, review decisions of the Board of jurisdiction, Veterans’ it should not be Appeals” when a final decision is apрealed overlooked that it premised on a final person adversely “a benefits, affected such Board decision affecting and not days decision” within 120 mailing of on what constitutes a claim at any given §§ the decision. 38 U.S.C. 7252 and 7266. adjudication time in the process below. Moreover, succinctly As recently as we held in stated opin- Clem Court’s Shinseki, ion, ons v. when claimants seek benefits for a renders final deci- they benefits, sion on a perceive affecting disabilities as them based matter and a upon particular symptoms, claimant upon provided copy not based a of that decision particular it, a medical term and notice causing per how and when to appeal (2009). timely failure to disability. precludes ceived file an NOA requirement liberally having jurisdiction The Court from construe a over that claim, states, recognition and the decision. This is what claimants the law generally competent are not it is the basic provide holding of the Court’s deci- opinions diagnoses today. as to sion require medi training, cal compel Secretary to view HAGEL, Judge, concurring in the develop a claim for benefits based on result, dissenting part: reported symptoms just and not a
particular, “diagnosis,” unconfirmed On I concur in the majority’s ultimate con- hand, requirement other to liberal clusion that we jurisdiction do not have ly construe a claim for way benefits in no review September 1998 Board decision. Secretary constrains the processing from However, separately I write because I be- the claim based on different theories lieve that our lack of stems Indeed, diagnoses. the Federal Circuit from entitlement to service connection for has held that a claim finally for benefits lung a chronic being disorder a cause, denied as to one medical is to be compensation distinct claim for VA separately treated a subsequent from entitlement to service connection for claim for benefits based on a different Persian Gulf Syndrome under 38 U.S.C. cause, medical disability even when the § 1117. majority chooses not to de- same, perceived by the veteran is the such cide doing this issue and in so further hearing as a loss that is sensorineural as confuses this in- Court’s caselaw with the Peake, opposed to conductive. Boggs v. terchangeable “issue,” use of the terms 1330, 1337(Fed.Cir.2008). 520 F.3d “matter,” and “claim” without a clear defi- nition of those terms. Thus, i.e., seeking a “claim” benefits — claim for benefits for whatever a Although majority veteran states that it is suffers from—is different from a “claim” unnecessary to decide whether Mr. i.e., two, the denial of presented analy- benefits based has one claim or its denied — on one specific diagnosis proposition differs sis stems from the that Mr. from a later submitted “claim” for benefits Tyrues presented single claim for based diagnosis. different medical benefits based on a condition. The stated, majority Otherwise what constitutes regards Tyrues’s joint pain, Mr. *21 307, v. symptoms Roebuck memory loss and pain, stomach West, 312-13(2006); v. see Schroeder lung condition. ancillary to the only as (Fed.Cir.2000). The Roe by mostly F.3d analysis facilitated Such in line with “issue,” recognized, also buck Court of the terms use interchangeable Bingham in v. Princi- holding the Court’s “matter,” specifically “claim” without and multiple there although pi, This refers. each terms stating to what establishing entitle view, or means will, in theories my in result precision lack of disability, if the a for a future, ment to benefit especially in the fuzzy decisions for same benefit pertain all full theories by the Court. opinion in when used disability, they constitute the same lan- includes majority’s decision The 313; Bingham Id. at see same claim. as, denying Board decision “a guage such 470, 474 Principi, 18 aff'd issue, on one disability compensation VA Nicholson, 421 Bingham v. sub nom. adjudica- under is still while another issue (Fed.Cir.2005). The Court F.3d benefits Board denies and “the tion.” definition of apply therefore this should distinct particular a issue with based on appeal. facts in the instant to the “claim” adjudica- further criteria and remands facts in this that definition to the Applying establishing entitle- tion another issue case, claims Tyrues Mr. two what explaining to benefits” without ment fully my explain To rea for VA benefits. it is a claim namely whether an “issue” is— necessary provide a more soning, it is theory of entitlement for benefits the relevant facts recitation of extensive added). (emphasis at 13 Ante benefits. by majority. provided than is potential to a later refers majority being shortly after hos- In March Board one “the decides situation where matter,” Tyrues Mr. pneumonia, pitalized another and matter remands VA benefits to prior a claim for meaning of amended explaining the again without added). lung to benefits for a entitlement By include (emphasis Id. “matter.” claim he disability. support of his sub- interchangeably, the ma- using the terms that refer to both ap- mitted records using the more jority is able avoid and, His claim for and bronchitis. “theory,” pneumonia “claim” and propriate terms initially lung disorder thus, central benefits deciding to avoid is able that denial Tyrues appealed Mr. denied. by Tyrues Mr. on appeal raised issue is, Board. whether parties briefed —that claim or in define one the facts this case Tyrues appeared In December Mr. and, two, the effect of this Court’s two member. At hearing at a before Board in decision Roebuck he his condi- hearing, discussed tion, congestion, including coughing in 38 been defined VA “Claim” has in was incurred service (2009), he stated “a or which 3.1(p) formal C.F.R. fumes, dust, exposure re- on his writing based informal communication that, Tyrues stated since Mr. or kerosene. of entitlement questing determination Gulf, he has entitlement, returning from the to a Persian evidencing belief three or diagnosed with Further, pneumonia Nichol- been in Roebuck v. benefit.” lung infection or as well as a son, of more times adopted the definition the Court lung. After growth on his by the Federal applied “claim” Circuit had no further West, that a stated he determined member Schroeder Tyrues’s representative Mr. questions, to a for entitlement application claim is any- he had Mr. whether disability. asked on a current benefit based VA *22 thing concluding to add before hearing. respect dence with to that’ claim. April In response, In Mr. Tyrues stated YA sent Mr. Tyrues that he a notice letter reading regarding newly had been about his symptoms that “claim for dis- filed ability benefits based being experienced by were on Persian other Gulf War soldiers added). service.” R. at 163 who had served in (emphasis the Persian Gulf and The letter requested that Tyrues that he had noticed that Mr. sub- he too was devel- mit oping non-medical evidence to symptoms, these including soreness support his claim. Mr. response, Ty- aching joints. his In response to lay rues submitted statements from his Tyrues’s Mr. description, Board mem- wife, coworker, and a fellow soldier who statеd: ber served with him in the Persian Gulf and not really That’s relevant now. I would who, time, at that with him worked you, advise there is what we call a Per- home. The letter from his coworker re- sian Gulf syndrome, I, things, now I Tyrues ferred to Mr. experiencing flu and would, if I you get were ahold Mr. cold upon symptoms returning from ser- Weatherly you here and guys could vice. Mr. Tyrues’s fellow soldier and cur- work up a claim because that’s an area rent coworker also stated that after re- right now which the law is changing turning duty, from Mr. Tyrues missed rather rapidly and there is a distinct colds, work flu, “because of complaints of possibility you get can service connected aching joints, and body.” soreness his because, for some of things these like I R. at 172. He further stated Mr. said, it, it is in process right now Tyrues could not work as a result of the developing and I would certainly file pain in body. Tyrues’s Mr. his wife stated claim for it. that her experienced husband constant added.) R. at 147 (emphasis The Board joint pain, numbness, inability to move af- member further stated that Mr. Tyrues ter sleeping, flu-like symptoms, and a pro- not currently did claim, have such a but pensity experience colds. that he should file a claim based on the 4, 1997, An April Compensation VA symptoms that he was describing. The Pension Examination worksheet mentions member again Board stated: “[T]he whole claims, two one claim for benefits for a process you starts with filing a claim and lung being disorder remanded from the identifying you what feel are symp- Board and another claim for benefits for toms related to this and [what] the Persian aching joints, loss, memory and a stomach syndrome are, Gulf symptoms there’s a condition, but notes that both claims are ” variety wide of them.... Id. Six days related to service in the Persian Gulf. In later, in apparent response to the sugges- May Mr. Tyrues underwent a VA member, tion from the Mr. Tyrues examination, appears which to relate his submitted a claim, in support statement lung condition to his service in the Persian stating that he wanted amend his claim Gulf. examiner diagnosed also him include aching joints, memory loss, “to and with “possible Gulf Syndrome War with stomach condition from caused Per- [his] breath, shortness of joint pain, mem- [and] Gulf sian service.” atR. ory loss.” R. at 191. Following request
In March the Board remanded his by records, VA for authorization to obtain claim for bеnefits disorder back Arnold, VA received records Dr. office, regional to the which Ty- sent Mr. which stated that Mr. experienced letter, 19, 1997, rues a notifying significant March lower back pain, manifested as him he could submit evi- “a dull aching pain additional sharp intermittent *23 claims, for entitle- a claim two to referred at 212. La- R. on movement.” component lung dis- for a connection to service ment sought treat- Tyrues Mr. show
ter records a claim for and basis shoulder, a direct order on right in his joint pain ment for a for connection to service morning entitlement strain, symptoms, flu-like lumbar undiagnosed disorder, an to due joint chronic joints, generalized in his stiffness chronic disor- to the regard illness. With also throat. VA a sore and coughing, pain, Mr. provide to der, ordered VA the Board Dr. Mitch- from records medical received examination, a new Tyrues with Tyrues that Mr. um, also which revealed in December provided was which pneumonia, pain, back chronic experienced and bronchitis. Mr. 2000, the Board denied February In for “shortness for benefits Tyrues’s office regional April
On resulting disability as a chronic of breath of the Statement Supplemental a issued at 313. illness.” R. undiagnosed from an continuing to it was Case, stating that subsequently remanded was lung a The decision for to VA benefits deny entitlement joint parties’ to pursuant by the Court day, regional On the same disorder. Mr. provide to for VA a remand motion for four that addressed a issued decision office examination. a new medical Tyrues with to service of entitlement A denial issues: underwent Tyrues (noted Mr. as a In December lung a condition for connection examination, ex- which the at VA issue) another the three and denial of remanded Tyrues’s “short- that Mr. aminer stated conditions, joint pain, including other ill- undiagnosed an due condition ness breath loss, a stomach memory to the likely as not due as least ness is at (noted and all attributed issues to be new exam- 350. That at illness”). service.” R. Gulf War R. at 241. “undiagnosed an “mild Tyrues with Mr. diagnosed also 1998 iner April referencing Tyrues, Mr. 2002, the July Id. In Case, chronic bronchitis.” Statement Supplemental found that Unit Development Board’s VA Case only bene- entitlement which denied to be incon- appeared diagnoses two condition, these lung appealed fits for a examination, оrdered another Indeed, by his sistent the brief submitted Board. Ty-Mr. diagnose the examiner requesting appeal the Board representative indicate disorder particular rues with issue” “question clearly stated that of an symptoms were result that his con- service was “entitlement 2002, a In October illness. undiagnosed R. at 261. lung disorder.” for a nection Mr. did Tyrues found VA examiner brief, Tyrues’s representative In Mr. at that problems any respiratory not have claim for Tyrues’s Mr. only to referred are problems any previous time lung for a disorder benefits to his not related allergies and related to history. previous procedural claim’s 2004, the April In service. Gulf War 1998, the Board denied September for benefits his claim Board denied disorder. connection service dis- a chronic as lung disorder respiratory/ Board, April referring to the ill- undiagnosed resulting ability the “issue remanded also rating ness. [ ] to service of entitlement Mr. facts reveal These by shortness manifested disorder chronic Board, to file illness, by a member advised breath, due to Syn- Persian benefits for a claim for Gulf War secondary to Persian claimed Gulf descrip- majority’s Although the drome. Although R. at 266. service.” “hearing officer” evidence, person as tion of this some of same discussed incorrect, description above, such a not does As stated when Mr. Tyrues ini- tially described his convey authority symptoms with which this state- at the De- cember hearing, 1996 Board ment was made. See 38 C.F.R. *24 member informed him that he 3.103(c)(2)(2009). needed to
§
Certainly a Board
file a new claim for benefits for Persian
member understands
the difference be-
syndrome,
Gulf
which
subsequently
he
did.
tween additional symptoms
disability
of a
Upon
claim,
receipt of his new
regional
for which
already
benefits have
been
developed
office
this claim as separate and
claimed and a claim for benefits based
distinct from his claim for benefits for a
upon
separate
disability. The Board
lung condition. The record contains a no-
specifically
member
Mr. Tyrues
advised
tice
requesting
letter
that he submit evi-
submit a “claim” to the agency
original
dence to support
newly
his
filed “claim for
jurisdiction. R. at 147. The use of such
disability benefits based on Persian Gulf
by
terminology
the Board serves to illus-
War
Indeed,
service.” R. at 163.
he sub-
problems
trate the
with
associated
the ma-
mitted lay
wife,
statеments from his
his
jority’s
“issue,” “claim,”
undefined use of
coworker,
and fellow soldier and cowork-
Further,
and “matter.”
from the time that
er, which indicated that he experienced
Tyrues
Mr.
amended his claim in 1996 to
joint and
body pain
overall
aas
result of
include entitlement to VA benefits for ach-
undiagnosed
illness. Medical reports
loss,
ing joints, memory
and stomach con-
from Drs. Arnold and Mitchum confirm
by
dition caused
his Persian Gulf service
symptoms.
these
Although the September
until the
September
Board issued its
1998 1998 Board
only
decision referred
to short-
claim,
decision remanding that
VA had
breath,
ness of
it still noted that
Ty-Mr.
considered, developed,
adjudicated
his
rues’s claim was for service connection for
claims for benefits for a lung condition and a chronic disorder
undiagnosed
due to an
for a
disability
chronic
resulting from ser-
illness.
vice in the Persian Gulf separately. Al-
“A claim is an application for entitle
though
majority
states that it need not
ment to a VA benefit based on a current
decide the issue of
Tyrues
whether Mr.
Roebuck,
disability.”
at 312-
two,
presented one claim or
it must consid- 13;
Schroeder,
see
injuries section, which signs symptoms of this symptomatology),8 the same they involve manifestations may be 463 F.3d Kelly medically unexplained chronic illness or (Fed.Cir.2006) multiple (holding that include, but are symptom illness not multi disability “were single diagnoses limited to: claims, two merely were] [but end—the establishing the same means Fatigue claim”). Here, Ty- Mr. service involving symptoms skin Signs or entitlement to service could establish rues *25 (3) Headache of his disabili on either connection based (4) pain Muscle ties. (5) pain Joint clearly commands the determi- The law (6) Neurologic signs symptoms or Tyrues has two that Mr. nation (7) signs symp- or Neuropsychological 1117 of title 38 claims. Section toms compen- entitlement provides U.S.Code (8) involving the Signs symptoms or basis to a Persian presumptive on a sation lower) system(upper or respiratory having complains veteran who Gulf War (9) Sleep disturbances that are illness or illnesses undiagnosed (10) signs symp- or Gastrointestinal during pre- disabling more 10% or toms by established the Secre- sumption period (11) signs symp- or Cardiovascular (B). 1117(a)(1)(A) § tary. 38 U.S.C. toms 1117(d)(2), the Secre- Pursuant to section (12) 3.317, weight loss § Abnormal tary promulgated has 38 C.F.R. part: in pertinent provides, which Menstrual disorders. (2008) (emphases § add- 3.317 C.F.R. (a)(1) provided paragraph in Except as ed); 1117(g). § also 38 see (c) section, pay compen- will of this VA chapter with sation in accordance brief, Secretary in his As noted Code, to a Per- title United States unique pre- § provides 38 U.S.C. objective who exhibits Gulf veteran sian undiag- connection for sumption of service dis- qualifying of a chronic indications in, incurred or manifested nosed illnesses disability: ability, provided such following, ser- during presumptive period By very Gulf. their vice the Persian (I)Became during ac- manifest either nature, these claims involve military, naval or ah’ service tive case, however, Ty-Mr. In this illnesses. opera- the Southwest Asia theater diagnosed has been lung condition rues’s War, Gulf or during tions the Persian He and bronchitis. pneumonia as both more not later degree to a 10[%] lung claim for a condition original filed his 31, 2006; and than December pneu- shortly hospitalized after he was examination, (ii) history, By physical 1998 Board monia. At the December laboratory cannot be attrib- tests lung discussed his hearing, Tyrues Mr. diagnosis. clinical any uted to known previous diagnoses condition terms of and a infection. The med- pneumonia Peake, Shinseki, F.3d at 1336. Vet.App. 1 8. See Clemons application of Boggs v. for this Court’s ical Indeed, records submitted with his re- under the statute and im flect diagnoses. contrary, these On the plementing regulation, such disability “by the December 1998 hearing, Mr. history, physical examination, and labora Tyrues symptoms including described ach- tory tests cannot be attributed to loss, ing joints, memory prob- and stomach known diagnosis.” clinical 38 C.F.R. May lems. The 1997 medical examination 3.317(a)(1)(ii). § specifically noted symptoms these and di- The facts in this case reveal that Mr. agnosed possible him with Persian Gulf Tyrues filed two claims for VA benefits Syndrome breath, joint shortness of based on separate disabilities. If there loss, pain, memory which could be one, are two claims and not then this case compensable under section 1117. easily resolved. The claim for VA bene- Tyrues’s Mr. private and VA medical fits for a lung condition was resolved that, times, records reveal at various he the Board in its 1998 from which treatment sought several of the Mr. sought appeal. no This claim 3.817, symptoms noted in including mus- *26 has, therefore, finally been resolved. Con- pain, cle joint pain, symptoms involving the sequently, I agree with majority that respiratory system, gastrointestinal the Court jurisdiction does not have to symptoms. symptoms These formed a ba- review that claim now. 38 U.S.C. sis for entitlement to service connection 7266(a). However, § I agree cannot § under 38 U.S.C. 1117 that is distinct majority’s implied determination that Tyrues’s Mr. claim for entitlement to in this Tyrues’s case Mr. conditions consti- benefits for a condition under 38 a single tute claim for VA benefits.9 With In support 1110. argu- of his respect matter, I respectfully that ment that dis- he has submitted two theories of sent. entitlement service connection instead claims,
of two separate
Mr.
cites
Schroeder,
However,
amount deny a claim on happened could—as nation. grateful to a of his service here — virtue it, against is the evidence theory A because Abra widely attributed “An epigram develop- for further the claim but remand in this case: appropriate ham Lincoln is theory A If denial theory B. ment you have if dog legs does many How appeal- that must decision is a call You can Four. leg? as a his tail count may be immediately, then ed to, but it doesn’t you want leg if a tail a final. It partial denial if this prejudiced Principi, 16 leg.” it a Kuzma make where the imagine a scenario easy to (en cu per banc a new produces B theory as to remand order) (Ivers, dissenting); see also J. riam the- actually supports opinion 940, F.3d Mukasey, Arteaga facts come new because ory A instead Cir.2007) (9th Lincoln’s wisdom (using in medical knowl- advance there is an light, a ‘so gang a street “calling conclude disagreement of simply there is edge, or by our humane group’ cial as meant reviewing expert new by a opinion not law does [asylum] accommodating already However, A has claim. so”); Group v. Liberty Inv. First make because finally denied—either been (3d 647, 652 Cir. F.3d Nicholsberg, 145 or be- appealed was not 1998) to conclude epigram (applying the that decision affirmed cause the Court an arbi escape employer could that an it existed at record as on the based employee labeling tration clause ap- of the Board decision—then time *27 contractor”). majori The “independent an being position now the pellant is is that a Board decision ty opinion holds theories even as to both finally denied says it I dis is. final the because the granting supports evidence though the decision that a Board I believe agree. based theory that was denied to a claim as ripe it final until not become is does record. Even underdeveloped upon review, Board’s regardless judicial the new evi- realizes appellant a particular hands of to wash its desire theory that as dence is material fully has been theory claim before the denied, date award- the effective originally adjudicated. See DiCarlo developed and upon will be based upon reopening ed (2006) Nicholson, original claim— claim rather than new pro finality “a measure (stating that is years of appellant costing the potentially Derwinski, 1 maturity”); Mokal cedural is adminis- process such a While benefits. (1990) a mat (adopting “as convenient, deeply un- it is also tratively jurisdictional restrictions policy ter of fair. controversy ru or Article case of the III a claim- ways in which be might There
bric”). majori of the practical The effect by or advised counsel savvy who is ant finally claim can be holding is a ty’s Perhaps the prejudice. avoid this could the evidence theory one before denied on final decision appeal the could fully is informed fully developed and VA is re- appellate theory argue A and current of the veteran’s as to the nature fully theory B is premature until view is etiology. condition and its they are because developed and decided However, that, inexti'icably intertwinеd. quite expect It reasonable essence, holds, claim, majority opinion a of the development full after are not of entitlement one theories a on alternative denying claim Board decision intertwined, inextricably to be presumed new evi- theory will be contradicted showing evidence and the see ante remand of a different developed on dence that the are adjudication” theories intertwined to no earlier than the “date be before the Court because is not devel- of the receipt of the application therefor.” oped until after the theory remand of B. What is the effective theory date if B never becomes final before theory A is However, most claimants do not have reopened and results in grant attorneys at the they Board level or when 5103(a)(1) claim? Section of title 38 re file their NOAs to Board decisions. The quires Secretary provide notice of majority purports to save claim- “the evidence necessary to substantiate the ants the burden of determining claim” whenever a person applies for bene whether a Board decision should be ap- theory fits. If A is being processed still pealed by adopting bright-line rule that and a claimant reopen B, wants to theory Board decisions that purport to be final any notice required given that no new always appealed. must be Ante at 18. claim is being filed? If required, notice is However, this “benefit” to claimants is ac- it actually apply claim, does to the whole tually mirage because it assumes that just to the theories that were previously unrepresented claimants will know that denied? See Kent v. 20 Vet. adopted the Court has bright-line rule. (2006) (section 5103(a) App. 1 notice as to It likely is much more pro appel- that a se application reopen a claim must be lant will not understand that a Board tailored to the basis of prior, final decision that remands claim as to some denial). others; (2) theories is still final as to the accept the decision knowledge without Secretary’s duty to assist has also the evidence developed that will be been defined Congress in terms of remand; or theory the denied claims. See 38 Suppose 5103A. though the merits even the full record theory remand of B for a new medical yet developed. opinion produces one that “indicates” that framework, Under a premature theory merit, NOA A may have but A has *28 can never hurt a Only claimant. under the already finally been denied. Is 38 U.S.C. 5103A(d) majority penalized § decision is a claimant triggered? See McLendon v. for not filing Nicholson, (2006). an NOA each time an individ- Vet.App. 20 79 On its theory rejected. face, ual is claim, duty applies the to the not to 5103A(d) theory. If section revives majority opinion The also fails to recon- previously theory final A without an cile its notion of theory-by-theory finality (or intent) application any even reopen, to plain language of 38 U.S.C. what would be the effective date and what § permits 5108. Section 5108 a claimant date would be determining relevant reopen to “a claim which has been disal- what law was in effect at the time the by lowed” submitting new and material claim was filed? happens evidence. What when a claimant obtains evidence that is new and material Although majority opinion fails to theory issues, to a finally that has been denied address of these it puts the before the whole claim has been denied? simply every Court on course to mark out appellant Would the file a separate claim instance of the word “claim” in title 38 and reopen to a claim pending “theory” that is still pencil order to make the being adjudicated? Similarly, 38 functional. U.S.C. statute The alternative would § 5110 limits the effective date for an pick be for the to Court and choose when award of to origi- Congress “theory” benefits the date of “the meant actually when it nal claim” or “a claim reopened after final wrote “claim.” I find either solution whol-
196
Nicholson,
limitations on
and mootness as
ripeness
Tropf
unacceptable. See
ly
(2006) (“Without
Vet.App.
1
jurisdiction. See
n. 1
our
321
Vet.App.
con-
and rules of
meanings
word
standard
mootness, the
ripeness
than
or
Rather
nor the Secre-
struction,
Congress
neither
theory-
our
manage
majority purports
in a
to write authorities
tary
know how
can
the Board’s
by-theory jurisdiction
prac-
and no
intent
conveys them
way that
ap-
granting
include “an ‘order
choice to
”
importantly
or—more
titioner
—vеteran
Ante at
denying
or
relief.’
propriate relief
to mean
regulation
or
rely
a statute
can
7104(d)). However,
(quoting
say.”);
appears
what
FedeRalist
The
power
Board
grants the
this standard
Madison) (“It
(James
be of little
will
No. 62
deny
or
claimants
arbitrarily allow
are made
laws
people
avail to the
choosing
by
theories
ability
choice,
...
man
no
their own
by
ofmen
an
For
include such
order.
whether to
today
guess
law is
can
what the
who knows
may include
a Board decision
example,
tomorrow.”).
it will be
what
not
why the evidence does
discussion of
to claimants
only realistic benefit
A,
remand for a new
theory
but
support
may
that claimants
majority
cited
theory B. If
addressing
opinion
review of the denied
judicial
faster
receive
formally
an order line
the Board includes
may
ap-
be denied
theories if claims
A,
be immedi-
then it must
denying
Ante at 15.
basis.
piecemeal
on a
pealed
However, if it
ately
does
appealed.
However,
judicial
is like-
review
premature
whole
a line and remands the
include such
the Court
harm the
because
ly to
claim,
is not appealable.
the decision
then
considering favorable
prohibited
technicality
to a
jurisdiction
our
By tying
Board deci-
developed after the
evidence
Board,
the Sec-
grant
we
controlled
the denial
review and
affirm
sion on
manage
our
retary
tool
information.
of the new
benefit
without
Nicholson, 20
Ribaudo v.
he sees fit. Cf.
Vet.App.
See Bonhomme
(2007) (en banc) (rejecting
(2007).
importantly,
More
once
43-45
in-
Secretary has
argument
that the
track of
gone down the
Court
authority
stay
pending
cases
herent
interlocutory ap-
allowing
types
some
opinion to the Federal
appeal of a Court
it is not
justice,
name of faster
peals in the
West,
Circuit);
Marsh v.
stop.
train
If the
where the
will
apparent
(1998) (“This
wary
has been
concerning rejects
argument
by the B[oard]
action
inaction
assist, but
*29
notify
duty
or the
duty to
depriving this
had the effect of
would have
develop-
type
a
of
different
remands
to review a
jurisdiction
B[oard]
of
Court
years
ment,
appellant
wait
why should
have
which the
Court would
over
gets
involved? Con-
before
Court
ac-
but for the
B[oard]’s
had
recognize
majority also
versely, the
fails
inactiоn.”). Alternatively,
tion or
on the sec-
grants benefits
that if the RO
in the
of
get involved
business
Court will
remand,
any review of
theory on
then
ond
determining whether a Board’s discussion
denying
same
the first Board decision
denial
to a
of a
amounts
formal
for the
potential
moot. The
is
benefit
technicality.
regardless of the
is
appeals
time on moot
to waste
Court
majority’s
I
also note
would
why finality
central reason
part of the
finality for Board
concept
new
of
decisions
ripe-
of
upon principles
be based
should
finality at
with the nature of
is inconsistent
blind deference to the
rather
than
ness
It
estab-
regional office level.
is well
Hence,
effec-
the Court’s decision
Board.
appealed
are
RO decisions
abandoning both
lished that
by
Mokal
tively overrules
197
claim-by-claim
by
370,
basis
fil
appellant’s
347,
(1920))
S.Ct.
effective date
piecemeal.
viewed
Ac
a claim.
final Board decision”
“a
statutory au
neither the
cordingly, I see
overly
on an
also relies
majority
The
nor the bene
ruling
Court’s
thority for the
de
Circuit’s
reading of the Federal
broad
by encouraging
created
to veterans
fit
Brown, 114 F.3d
v.
in
cisions Grantham
v. Ni
Matthews
litigation.
piecemeal
Cf.
(Fed.Cir.1997),
1156,
and Barrera
1158-59
(2005)
202,
(per
cholson,
206
Vet.App.
19
(Fed.Cir.
Gober,
1032
122 F.3d
v.
order) (“The
cautions coun
curiam
1997).
proposition
the
cited for
They are
litiga
piecemeal
in
engaging
against
sel
has blessed the
Circuit
the Federal
16
tion.”);
Principi,
Snyder v.
over
exercising jurisdiction
concept of
order)
(en
curiam
per
banc
n. 3
to have
purports
where
issue
(“The
J., concurring)
Secretary
(Steinberg,
Nothing could
final decision.
a
rendered
of the Court’s
no reminder
need
should
in
The issue
from the truth.
further
be
piece
discourage
policy
longstanding
the down
was whether
those cases
both of
Principi,
v.
Burton
litigation.”);
meal
rating and effective
of
elements
stream
or
curiam
(per
new
through a
No
disputed
date must be
der) (“We
the kind of
encourage
should
one
though
had
even
Disagreement
tice of
appellant
the
in which
litigation
piecemeal
a
of
denial
disputing
been filed
previously
engaged.”).
here
Barrera, 122 F.3d
See
service connection.
Grantham,
F.3d at 1158.
1031;
at
would be con-
my misgivings, I
Despite
relied
holding
actual
of Grantham —as
majority
its
with the
agree
strained
of
appeal
upon
Barrera —was
controlling caselaw cited
of
opinion
service
up-stream element
logically
“the
Fortu-
outcome reached.
compelled the
of “the
independent
connectedness”
Notably,
majority
it
not.
nately,
does
compen
element
West,
logically
F.3d 1370
down-stream
v.
Maggitt
cites both
Grantham,
at
114 F.3d
(Fed.Cir.2000),
sation level.”
Joyce
words,
dispute
a
over
other
(Fed.Cir.2006),
1158-59.
pro-
and then
I believe the ultimate flaw in the
ity’s use of Federal Circuit caselaw is that
In summary, I do not think that admin-
precedent
traces back to
outside the
istrative convenience can justify the out-
claimant-friendly realm of veterans law.
come reached here or the concomitant con-
notes,
majority
upon
As the
Elkins relies
delays
fusion and
that will be generated as
States,
Dewey
Corp.
Electronics
v. United
Rather,
a result.
because the majority
(Fed.Cir.1986).
only
do then he has no one to blame but appellate
himself if agency review of the
contracting decision is reviewed based
upon inadequate record. Veteran ben
efits are an exception gener claims to this area,
al rule. In this VA owes substantial VELEZ, Appellant, Michael duties to assist the claimant in the devel opment Therefore, of the claim. it is in appropriate presume that errors that SHINSEKI, Seсretary Eric K. clearly prejudice the development of evi Affairs, Appellee. Veterans theory dence as to one of entitlement did not prejudice any may other No. 07-1704. support Hence, an award of benefits. Appeals United States Court of
majority opinion’s analysis importing for Veterans Claims. concept finality sophisticated suited to agencies claimants before other is funda 9,Oct. mentally addition, flawed. Fed eral in Dewey Circuit observed Electron Corp.,
ics agency’s “the characterization of
a decision is not determinative of the fi
nality issue and the relevant statutes out
lining the required administrative proce
dures must be examined.” Id. at 654. In words,
other even the upon caselaw relied recognized Elkins courts re
ject an agency’s attempt point ato tail Peake, leg.
and call it a Fagre See also
22 Vet.App. (per curiam
order) (rejecting the Secretary’s charac- notes Id. at 315-16 (emphasis In hold- terms, by its involved a “unique” ing that set of the first Board decision was nonfi- circumstances nal, where the Board issued a the Court noted that adjudicate “to decision two separate parts, explicitly claimant’s of one theory of a claim so, stating its intent to do remand without while the Board is still deliberating on ing Roebuck, a matter to the RO. 20 Vet. theory another supporting that same App. at 816. Specifically, Mr. Roebuck claim, our efforts would be potentially du- claimed entitlement service connection plicative and unnecessary.” Id. at 315 disorder as to tobacco secondary added). (emphasis Thus, among the dependence use nicotine and also as unique circumstances of Roebuck was the secondary to exposure. asbestos In De Board’s issuance of its decision in two cember issued decision parts without remanding either denying service connection for a lung dis the RO for development further and read- as secondary order to nicotine dependence judication. Id. at 316 (noting and, in the expressly same stated Board’s decision “was issued by the Board that would also issue a decision parts separated in two than a less concerning the exposure asbestos theory of year”). Accordingly, Roebuck is limited to later, causation. than year Less one Board, the situation where the in its deci- Board issued another decision denying ser sion denying theory, specifically one states vice connection for a lung disorder as sec that the Board will be issuing, without ondary to exposure. asbestos Id. at 317. RO, remand to the a second