*1 63 (2010); Vet.App. Dofflemyer, for a veter- 23 380 2 a National Service Officer as 281; Collier, 250; organization. employ- This Vet.App. Vet.App. an’s service 3.343, working §§ 40 hours a week ment involved 38 C.F.R. 3.344. $51,000 per year, earning as much as April 2000.” reported Hamer] [Mr. III. CONCLUSION 8; R. at 179-80. It is clear that foregoing, On consideration employment Mr. Hamer’s constituted 9, 2007, July Board decision is AF- improvement material his condition FIRMED. unemployability. individual 3.343(c)(2): §
Pursuant to 38 C.F.R. disability rating
If a veteran with total on in- compensation purposes based begins to en- unemployability
dividual
gage substantially gainful occupa- in a during period beginning
tion after the veteran’s January Leroy MACKLEM, Appellant, B. solely may not be reduced on the basis and followed such sub- having secured v. occupation stantially gainful unless SHINSEKI, Secretary Eric K. occupation for a veteran maintains the Affairs, Appellee. Veterans period of consecutive months. No. 08-1409. employment nearly Hamer’s lasted Mr. requirement the 12-month
years, well over Appeals United States Court 5112(a) § outlined above. See for Veterans Claims. (“the effective date of reduction or discon- compensation tinuance of shall be fixed Aug. found”).
in accordance with the facts
Nonetheless, has also held this Court procedural protections [38
that “the inapplicable § are to retroac- 3.344]
C.F.R. disability ratings.”
tively assigned staged Shinseki,
Singleton Vet.App.
(2010). above, is the As discussed
very applicable situation to Mr. Hamer’s
case, i.e., retroactively assigned he was
staged ratings based on the determination was clear unmistakable er- there Accordingly,
ror the 1985 decision. § applicable
C.F.R. 3.344 is not Mr. if
Hamer’s case. Even the Court were to § applicable
find that 38 C.F.R. 3.344 were retroactively applied staged ratings, Mr. employment a materi-
Hamer’s constituted
al improvement his condition and there- regulation apply.
fore the would not Shinseki, Singleton
38 U.S.C. *2 Viterna, Ypsilanti,
Michael R. Michi- gan, was on the for the appellant. brief Carr, Michael A. with whom John H. Counsel; Thompson, Acting General Campbell, Randall Assistant General Counsel; Rogall, Deputy and Leslie C. Counsel, Assistant Washing- General all of ton, D.C., were on the brief for the appel- lee. HAGEL, LANCE,
Before SCHOELEN, Judges.
LANCE, Judge: MacKlem, The appellant, Leroy B. counsel, through 27, 2008, appeals March decision of the Appeals Board Veterans’ (Board) that determined a March 1950 rating which severed the appellant’s service-connected benefits on the basis of clear and unmistakable error (CUE) in original March 1944 rating decision awarding service connection for hip, arthritis of the left did not contain (R.) CUE. Record at 3-27. In a single- judge memorandum decision issued on No- 3, 2009, vember the Court affirmed the 24, 2009, Board decision. On November or, moved for reconsideration alternative, in the by panel. consideration 4, 2010, On February panel ordered parties supplemental to submit memo- randa. memoranda, After review of these parties’ briefs, record, other and the the Court’s November memoran- dum decision is withdrawn and opinion place. is issued in its For the reasons set below, forth the Court will reverse the Board decision and remand the matter for further proceedings consistent with this decision.
I. FACTS duty served on active months, approximately nine from Febru- Section, ary aseptic to December 1943. R. 38. He necrosis is second- European-African-Middle life, ary hip received the to a dislocated in civilian and Bronze Campaign Eastern Medal Star 1941.” Id.
Attachment. Id. The record reflects that *3 appellant’s Disability The Certificate of European he arrived in the Theater in Discharge reveals that he was recom- and returned home in Novem- June 1943 “[n]ecrosis, discharge mended for due to in having participated ber the “Occu- severe, femur, aseptic, head of left second- pation Sicily.” dislocation, ary to left hip, accidentally in- appellant’s The induction examination civilian, curred while a when he was in- report that had dislocated his indicates he accident, in an volved automobile Dec. in that hip there was “no recur- 1941,” that, indicating injury the “[s]ince rence,” and that the condition was “non- appellant] on 24 Dec. [the has had symptomatic.” R. at 396-99. An October pain hip.” intermittent in left R. at [the] x-ray report appellant’s pelvis 419-420, 419. impression “aseptic notes an necrosis.”1 A March rating decision awarded An 1943 Medical 389. October arthritis, secondary service connection for diagnosed report appellant’s Board condition, appellant’s hip left and “[njecrosis, severe, symptoms aseptic, a assigned disability rating, 20% effective femur, by previous head of left caused December 1943. R. at 331. dislocation in December 1941.” R. at 384. report disability concluded that In October under- duty in was not incurred the line of hip surgery Hospital went at the Marine in prior appellant’s had existed to the induc- Detroit, Michigan, hospital- and remained A tion. Id. November 1943 Brief Clinical 182-86, January ized until 1946. R. at diagnosis Record noted a final of “[n]ecro- “special orthopedic A examination” report sis, severe, femur, aseptic, of left head osteochondritis,2 diagnosis or reveals in by previous caused dislocation Decem- disease, Perthe’s left hip, with se- report ber 1941.” R. at 372. The reiterat- 188; vere limitation of motion. R. at disability prior ed that the existed to ser- 182-96,193-94. atR. vice and in incurred the line of A February physical examination duty. AId. December 1943 “Final Sum- report diagnosis indicates a of “[o]steo- mary” detailing medical examinations at (Perthe[’]s chondritis, hip).” left femur R. Billings Hospital, General Fort Harri- 316; at see R. at 310-316. A March 1945 son, Indiana, that, prior indicates to enlist- sheet stated ment, in “was involved an (Perthe’s disability was osteochondritis automobile accident [and] suffered disease) of that it hip, noting the left had dislocation of the left R. at 353. hip.” formerly diagnosed been as arthritis of the Noting prior that the results revealed x- hip. left R. rays aseptic were “characteristic necro- sis,” A physician July physical stated examination indi- “[i]n opinion of the Chief of the Orthopedic cates had dislocated his "Aseptic "increasing necrosis” is defined as 2. "Osteochondritis” is defined as “inflamma- cystic changes sclerosis and in the head of the cartilage.” tion of both bone and Dorland’s femur which sometimes follows traumatic dis- at 1366. hip.” location of the Dorland’s Illustrated 1254(31st ed.2007) [here- Dictionary Medical inafter Dorland’s]. but that he all
hip prior to service evidence from 1944 to the rating “[w]as right Army until he into the went Feb- board concluded that there was “no evi- 1943,” ruary experienced during any abrupt where he dence service of “[s]ome sud- patholofgic] den pain hip during training.” developments basic or trauma [his] positive which could be considered a report *4 expected in the condition which was in- February ap- 1946 decision increased the life, curred civilian which [in] and disability 70%, pellant’s rating to effective noted on induction.” Id. February at 1946. R. 2006, In September years after sever-
A report physical examination ance, appellant submitted a letter ar- 1943, noted that appel- March “[i]n [the guing that rating the March 1950 decision went on sick call pain lant] left [the] CUE, severing his benefits contained as- hip reported off and on ... finally it that serting only the decision was based on became so bad reported [that] he to the a “difference opinion, which in itself hospital Sicily and was sent to the does not meet the criteria for severance.” States, arriving Billings [at] General Hos- 2007, R. January Detroit, at 97. In pital 28, 186; November 1943.” R. at [on] (RO) Michigan, regional office issued a see R. at 182-96. rating finding decision that the March In January proposed sever- 1950 decision did not contain R. CUE. at ance of appellant’s service connection submitted a Notice award on the by basis of CUE “as shown (NOD). Disagreement R. at 88. the evidence of record the time of the The appellant thereafter received an un- prior decisions.” R. at 180-81. VA noti- dated letter from the Detroit RO indicat- fied the proposal. R. at ing that it had “made a your decision on 171-73. A March rating decision sev- appeal January received on 2007.” R. ered service appellant’s connection for the at 60. The letter included a schedule de- osteochondritis of the left femur on the tailing past-due payments to which the 162-65, basis of CUE. 63. The deci- appellant would be entitled. R. at 60-66. sion indicates that appellant’s induction This undated apparently letter referred to reported examination that hip he had a (DRO) decision, a decision review officer dislocation as a civilian in 1941 and that 1, 2007, dated indicating June the condition was nonsymptomatic. R. at appellant’s sought appeal “[benefits are 163. Noting that the hip condi- granted ... April [and] reinstated service, tion existed the decision 1950.” R. at 71-78. That that, states “[approximately one month decision states that “the severance of ser- reporting after duty active the veteran vice is held to [connection] clear and call, went on sick complaining hip pain,” unmistakable error.” R. at October he was admitted Hospital the 33rd General “diag- with a A July 2007 letter to the director of the necrosis, severe, nosis of aseptic, head of Detroit RO from the director of VA’s Com- femur, dislocation, left by (C P) caused Decem- pensation and Pension Sendee & ber 1941.” Id. reviewing After the medical indicates that the aforementioned June (Mot.) merely a lant’s Motion for Reconsideration proposal. DRO decision was letter, explains entitled “Adminis- 4-5. The further his R. at 58-59. The position supplemental in his brief in re- Award Over trative Review—Retroactive 4, 2010, Years,” sponse February to the Court’s that the Eight *5 clearly dence indicated that this condition legal no pursue was basis further service,” that the sev- prior existed grant full of benefits.
erance “decision was correct.” 58- Appellant’s Supplemental (Supp.) Br. at 5- In August appellant VA issued the brief, In supplemental Secretary his (SOC) continuing a Statement of the Case argues that August 2007 SOC is not finding its that the severance decision did Secretary’s Supp. void. Br. at 2. He con- appel- not contain R. at 44-57. The CUE. appellant tends that the suffered no viola- perfected appeal lant an of the decision. because, process rights tion of his due R. at 41-42. though argu- could not “[e]ven he submit Service, ment to the & PC he reviewed appeal, In the decision the Board draft, non-promulgated the DRO’s decision determined that there was no CUE in the argument and submitted was later [and] March 1950 decision because there was opportunity hearing afforded the for a plausible basis the record for the March In the RO and the Board.” Id. es- finding 1950 decision in the March CUE sence, that, Secretary argues although 1944 decision. R. at 1-25. with a providing VA erred decision, any harm- II. draft such error was ARGUMENTS enjoyed novo less because de brief, argues In his initial the appellant Board, by any review “without defer- “that finding Board erred any prior legal ence accorded to or factual March 1950 decision was not the analysis” by undertaken VA. Id. (Br.) product Appellant’s Brief CUE.” at 7. In his motion for reconsideration or a III. ANALYSIS decision, however, panel does Appellant’s A. argue Arguments Regarding that the 1950 RO decision con- Instead, tained the Board Decision CUE. he contends that the void, that, August asserting SOC 1. Clear and Unmistakable Error extraordinary “but for the process Legal a. Framework case, undertaken in if this even the June' 2007 DRO decision was a proposal, mere it At the time of the March 1950 path severance, was on the promulgation.” Appel- regulation governing Veter- 2(a), II, Ill; Regulation pt. par. given why ans No. as to the result would have different”) Department Regula- of Veterans Affairs manifestly been (emphasis 25, 1936, January West, tion effective original)); Bustos v. 179 F.3d (Fed.Cir.1999) precur- December which was the (adopting 1380-81 (2010), § provided sor of 38 C.F.R. 3.105 interpretation Court’s of 38 C.F.R. 3.105). VA could not reverse or amend a § To establish in a final CUE rating decision in the absence of new and Board, decision of an RO or the a claimant material evidence but that a decision could prove must be reversed or amended where such rever- (1) that either the facts known at the or obviously sal amendment was warrant- adjudicator time were not before the or by ed CUE shown evidence the law then in effect incorrectly file at the time that the decision was (2) applied, that an error occurred based 1009(A), Regulation rendered. See VA on the record and the law that existed at (D), as in effect in 1950. made, the time the decision was made, had the error not been A VA decision that fi has become manifestly outcome would have been dif- generally may nal not be reversed or ferent. amended in the absence of CUE. See 38 5109A, 7111; West, §§ Grover v. 12 Vet.App. 38 C.F.R. (1999); 3.105(a); Brown, §§ see also see also 38 U.S.C. Damrel v. 6 Vet. 7105(c). (1994); Russell, A claim App. Vet.App. of CUE is a collateral attack final on a an 313. CUE is the sort of error that RO the “undebatable, Board. See Disabled Am. so that it can Veterans v. be said *6 Gober, 682, (Fed.Cir. 234 only F.3d 696-98 reasonable minds could conclude that 2000). original fatally CUE claims as to RO decisions are decision was flawed at 5109A; Russell, § permitted by 38 the time it was made.” U.S.C. 38 3 Vet. App. § 7111 at U.S.C. authorizes such claims as to 313-14. To establish it must CUE Board decisions. Both be clear from the face of statutes contain the RO decision particular identical “If that a language: evidence fact or law had not been estab error, prior adjudication lishes the considered decision shall be RO’s (cit reversed or case. Crippen, Vet.App. revised.” 38 9 at 421 5109A(a), 7111(a); Brown, §§ ing Eddy 52, v. Vet.App. see also 38 C.F.R. 9 58 (1996)). 3.105(a), 20.1403(a). §§
“ ‘In order for there to be a valid claim This Court reviews claims CUE [CUE], claimant, short, ... only they [t]he when previously adju have been must assert more than a disagreement as dicated the Board. See Sondel v. Brown, 218, to how the facts were weighed (1994); or evaluat 6 Vet.App. 220 Rus ” Brown, 412, sell, Crippen 314-15; ed.’ v. Vet.App. Vet.App. 9 3 at see also Brad (1996) (2001) (quoting 255, 418 v. Principi, ley Principi, Russell 3 v. 14 Vet.App. 257 (1992) (en 310, banc)). (Court Vet.App. 313 jurisdiction More lacked over over, identify a CUE claim must al improperly CUE claim improvidently “ error(s) leged degree with ‘some of speci raised for the first time appeal on to the ” Court). ficity.’ (quoting Fugo 420 In reviewing v. Board decisions Brown, (1993) (“to 40, 6 44 Vet.App. rea evaluating allegations prior of CUE in fi sonably decisions, raise CUE there must be some nal the Court “cannot conduct a degree of specificity alleged plenary as to what the original review of the merits of the error is and ... persuasive reasons must decision.” v. Principi, Vet.App. Archer 3
69
(1992).
appeal
ing
subject
437
On
a Board
service would be
pre
to the
sumption
aggravation,
that there was no
in a
determination
CUE
which mandates
final
that a
“preexisting injury
RO
this Court’s review
or disease will
determining
aggravated by
is limited to
whether
considered to have been
service,
“arbitrary, capricious,
military
Board decision was
active
where there is
discretion,
in disability
an abuse of
or otherwise not in an increase
during such ser
law,”
vice,
including
specific
accordance with
whether
unless there is a
finding that
supported by
disability
the decision is
an
the increase in
adequate
is due to the
progress
statement of reasons or bases.
natural
38 U.S.C.
the disease.”
7261(a)(3)(A), 7104(d)(1);
1153;
§§
Regulation
see Lane v. U.S.C.
see Veterans
(2002) (af
1(d)
1(a),
I,
(1943);
Principi,
Vet.App.
part
para.
Joyce,
83-84
No.
firming
longstanding prece
Vet.App.
this Court’s
at 44. As the
correctly
Board
found,
regarding
dents
standard of
the March 1950
decision to sever
determinations), aff'd,
predicated
just
finding.
CUE
App. Eddy, Vet.App. appellant argues that the March 1950 RO 57; Russell, Vet.App. at 315. That stan decision mischaracterized the evidence “ review, however, ‘contemplates by stating dard of then of record that there was no ” questions “abrupt pathological de novo review of of law.’ or sudden develop Nicholson, Joyce Vet.App. 43 ments or trauma” demonstrating aggrava tion, (quoting Principi, explained, Kent v. as the Board 389 F.3d the 1950 deci 1380, 1384(Fed.Cir.2004)). explicitly sion nevertheless determined appellant’s hip worsened based Application Appellant’s
b.
to the
Case
solely on the natural progress of his condi
7-11;
tion. Appellant’s Br. at
The issue before the Court
Moreover,
correctly
pointed
out
in determining
whether the Board erred
Secretary,
this Court has held that
the March 1950
decision sever
it
arbitrary
capricious
is not
“for the
ing service connection did not contain
*7
Board to have found no CUE insofar as
appellant argues
CUE. The
that the Board
may
the ... RO
have based its determina
decision should be reversed because it
nonaggravation
tion of
on an implicit find
“fails to establish that
the RO met
its
evidence,
ing, by clear and unmistakable
burden to
grant
show
the
[CUE]
progression
by
natural
the Medical
service connection for
[appellant’s] hip
the
Secretary’s
(citing
Board.”
Br. at 15
Appellant’s
condition.”
Br. at
ap
7. The
49-50).
Joyce, 19 Vet.App. at
pellant asserts that the March 1950 deci
sion contained CUE because “the
im
RO
appellant
the
could have chal-
a
posed
requiring
test
to show
or
‘abrupt
lenged the March 1950 decision via a direct
pathological developments
sudden
trau
thereby
appeal,
enjoying the benefit of the
ma’
prove aggravation”
appel
the
demonstrating
lower threshold of
clear er-
hip injury.
(citing
lant’s
Id. at 9
ror, he did not choose such an avenue.
164).
contends, therefore,
appellant
The
the much
Under
more burdensome CUE
that
incorrectly
“the law then
effect was
standard, however,
simply
the Court
can-
Grover,
applied.”
Here, disputed it is not appel- arbitrary, capricious, tion is an abuse of discretion, hip preexisted lant’s condition service. or otherwise not in accordance 7261(a)(3)(A). Any worsening of appellant’s hip the dur- with the law. 38 U.S.C. Secretary, Board’s Characterization appel the case on which the relies, Derwinski, the Evidence lant Colvin v. 1 Vet.App. (1991), inapplicable analy is to a CUE appellant The that contends the Board prior, sis of a final decision from as it in characterizing hip erred his condition as Grover, was not then in supra. effect. See Appellant’s a fracture. Br. at 14. The Moreover, at the time of the severance of Board, appellant is correct insofar as the appellant’s grant, service connection referring appellant’s to the preexisting rating the VA boards physicians included condition, hip stated that “it has been un- and, by Secretary, as noted the chair disputed that the veteran fractured his left man of the that board determined hip prior ap- to service.” R. at 10. The to sever appellant’s grant indeed however, pellant’s argument, fails two medical doctor. Appellant’s Br. at 18. First, respects. although it is obvious that incorrectly the Board ap- characterized the Appellant’s B. Purple Argument Heart fracture, pellant’s hip condition as it is gravamen The not clear how this isolated misstatement alternative argument the sole issue prejudiced appellant, ap- nor does the —and necessitating panel by review this Court— pellant by explaining any aid the Court that, regardless of the merits of his potentially prejudicial effect. See Shinseki assertions, CUE he is entitled to the bene Sanders, 556 U.S. 129 S.Ct. fits outlined the June 2007 decision be 173 L.Ed.2d (noting cause subsequent VA’s review and denial showing bears the burden of were based on an procedure. Ap invalid any alleged notice error resulted in pellant’s Supp. Secretary Br. at 5-6. The prejudice); Mansfield, Mlechick (Fed.Cir.2007) (the procedure concedes that the used in F.3d Court valid, argues but appel because the preju- must take due account of rule of error). ample opportunity lant had to submit ar dicial gument and because he received de novo Second, by Secretary, as noted Board, review the VA’s reliance chiefly case on which relies procedure prejudice invalid did not in asserting nonprecedential, error is a appellant. single judge memorandum decision. Sec- retary’s Br. at 18. The Court reminds operative appeal issue in this counsel for the that citation to whether VA’s reliance on the extraordi- nonprecedential opinions permitted is not (EAP), nary procedure award which has by the Court’s Rules of Practice and Pro- now been invalidated the Federal Cir- App. *8 30(a) (“A cedure. party U.S. Vet. cuit, August renders the 2007 SOC void ... may precedent any not cite as action and, so, if how that affects the status of the designated nonprecedential by as the clear, appellant’s claim. To be VA com- Court.”). during mitted two errors processing its 3. Medical Determinations First, mistakenly the claim. it Second, argues proposed the March sent him a in decision. error, 1950 severance decision in- attempting was erroneous to correct the first rating EAP, asmuch as the board made a medi- used the which has now been de- cal determination regarding Although the natural clared invalid. the first error progress of his hip Appel- prejudice appellant, condition. See did not the the Court lant’s Br. at argument disposi- 14-15. This is concludes that the second error is Again, pointed without merit. out in as tive that VA’s use of the now-invalid EAP renders all YA action taken thereaf- the June 2007 proposed decision and the ter void. August 2007 SOC were predicated both entirely EAP, on the because and the Fed- can question EAP,
There be no eral Circuit has determined that the EAP set forth Fast Letter 07-19 and contin invalid, it is follows that August 08-24, ued Fast Letter longer is no Moreover, void ab initio. SOC point- as Military valid. In Purple Order Heart out by ed the appellant, for “[b]ut Sec’y Affairs, Veterans the Federal [EAP,] ... this appeal would not have EAP, Circuit made clear as “set occurred as sought the benefit had been Letters[,] forth in the Fast does not com granted the June 2007 DRO decision.” port with the governing Regulations, ... Appellant’s Supp. Br. at 6. The Court con- implemented in compliance with that, cludes based on Federal Circuit’s requirements of the Administrative Heart, in Purple determination the August Act[,] Procedure is not accordance 2007 SOC was void ab initio and the result- ‘law, rule, with or regulation,’ and is inval ing Board decision is legal likewise a nulli- (Fed.Cir.2009) 1293, 1297-98 id.” 580 F.3d ty- 706(2)(A)). (citing 5 U.S.C. The issue presented is what effect the use of this Because subsequent actions were procedure
invalid
has on this case.
unlawful,
prejudiced
Secretary
argues
the EAP in this case
regardless
the fact
worst, the Court should remand this mat-
that it is clear that his
assertion CUE is
ter to the Board so that
the Board can
Here,
without merit.3
VA’s
because
reli
remand the appeal to the RO with instruc-
ance on the EAP
August
renders the
SOC,
tions to issue a new
his argument
initio,
void
SOC
ab
the Court must set
flawed. See Secretary’s Supp. Br. at 4-5.
aside the resulting Board decision “as ‘not
”
Issuance of a new
would
SOC
not cure the
in accordance with law.’
Brown v.
error
this
Brown,
case.
prob-
(1993) (revers
The fundamental
5 Vet.App.
lem is not that
was denied an ing Board’s reduction of disability rating
opportunity to submit evidence and argu-
remanding
Board
reinstate
Indeed,
ment.
motion,
is a
CUE
rating) (quoting
§ 7261(a)(3)(A));
38 U.S.C.
(1)
the inquiry is limited to
West,
whether the
see Wilson v.
11 Vet.App.
386-
correct
(1998)
facts were not
adjudica-
before the
(applying
principle
same
to case
tor;
(2)
or whether
incorrectly applied
YA
involving
connection);
severance of service
the statutory or regulatory provisions ex-
Derwinski,
see also
1 Vet.
Schafrath
Damrel,
tant at the
time.
Vet.App.
at App.
(reversing Board’s
245. As the Federal Circuit emphasized,
decision that
should
reduced be
problem
is that VA revised a favorable
cause the Board had
provide
failed to
ade
decision “without
knowledge
par-
bases).
statement of
quate
Ap
reasons
ticipation
Heart,
Purple
Heart,
claimant.”
Purple
plying
it is clear that the
lant in the however, Circuit, these considered EAP, of a favorable Federal receipt proce- that such erroneous. and concluded position arguments if that is even appro- only be instituted “with could dures Secretary is aware The Court authoriza- statutory regulatory priate major reviewing has a serious interest Heart, 580 F.3d Purple tion.” adjudicators. RO by front-line decisions meantime, side ef- an unfortunate In the delays, VA has to reduce In an effort backlog is to reduce VA’s of the rush fect processors. new claims of added thousands will receive incorrect that some veterans Programs: for Budget Veterans’ FY 2010 Comm, adjudicators. inexperienced from decisions on Veter- S. Hearing Before the (Mar. 2009) Affairs, Cong. 111th ans’ concurring col- agree our We also with CommP- http://www.senate.gov/fplayers/ to have a means that VA should league layer/commFlashPlayer.cfm?fn=ve- protect thus from fraud and protect itself (video Sec’y of Shin- & st=060 taff031009 have been told fisc. As we public (response to testimony at 82:00 seki’s however, Circuit, introducing Federal Murray)). The ad- from question Senator effect, adjudication is, secret to what attorneys. generally are judicators system procedures whose non-adversarial Findings HARRIS, Raters from Daniel is great detail by Congress out are set (The Surveys Corpora- CNA and VSOs accomplish this means available to not a 2007) part tion, (published May end, worthy. matter no how Commission), Disability Benefits Veterans’ http://www.vetscommission. any available lawful action In the absence (last org/displayContents.asp?id=4 internally the June 2010) (26% adjudica- checked June adjudicator that the RO decision of degrees, 40% college not have tors do that decision appellant, favorable to and 84% college degrees, have have remand, the Board shall On must stand. Furthermore, [cjollege”). [t]han “[m]ore in accordance with proceed expeditiously, years newly to 5 for “it takes about 3 5109B, (requiring Secre- §§ profi- specialists to become hired treatment” tary provide “expeditious job.” of the complexity given cient Court). by Board or claims remanded Aocountability Office, Publ’n U.S. Gov’t Findings Preliminary GAO-090910T, No. IV. CONCLUSION Improve- Trends on Claims PROCESSING foregoing Upon consideration (2009); also Hearing ment Efforts appeal, and the analysis, the on record Disability Com- on Review Veterans’ November pleadings, the Court’s parties’ Delay in Claims Pro- pensation: Undue Comm, memorandum deci- single-judge Hearing Before S. cessing: (Jul. The March sion is withdrawn. Affairs, Cong. 7 110th Veterans’ and the (statement REVERSED 2008) Patrick Board of Rear Adm. W. to the Board for (Ret.), is REMANDED Dunne, Acting Under Secre- matter USN opinion. Benefits), action consistent with http://frwebgate.access. tary for gpo.gov/cgi-bin/getdoe.cgi?dbname=110_ It docid=f:43860.pdf. senate-hearings & LANCE, opinion of Judge, filed the
reasonable, therefore, major have Court. supervision subject experienced awards concurring SCHOELEN, filed a Judge, deci- and inconsistent to avoid incorrect opinion. sap veterans and that would confuse sions
73 SCHOELEN, Judge, concurring venting in the fraud or carefully error —must be result: scrutinized. The Federal Circuit discussed VA’s ex- agree I majority with the (EAP) traordinary procedure award in its
the extent that it holds that the Board’s
Purple Heart decision
properly
and
de-
decision must be reversed and the June
clared it invalid. As the Federal Circuit
2007 decision of the Decision
Offi-
Review
noted,
procedure
promulgated
(DRO) reinstated,
cer
I write separately to
through VAa
Fast Letter requiring that
address several concerns.
certain awards be
from the
referred
re-
First, I want to
importance
stress the
of
(RO)
gional office
to the compensation and
a veteran’s
participation
proceedings be
pension director “for
‘final determina-
”
VA,
recognized
fore
by the U.S. Court
Heart,
tion.’
Purple
veterans, as the use such CULLEN, Appellant, Gerard 3.105(a), permits prior decisions § which amended on the basis be reversed error. See 38 unmistakable clear and SHINSEKI, Secretary of Eric K. (“Previous 3.105(a) (2010) deter- § C.F.R. Affairs, Appellee. Veterans binding ... are final and minations which correct in the absence accepted as will be No. Where error.
of clear and unmistakable Appeals States Court of United error, such evidence establishes for Veterans Claims. amended.”). reversed or will be decision 10, majority’s Argued June by Finally, I am disturbed portion of this significant of a dedication Aug. Decided more nothing amounts to opinion to what holding ultimate of this than dicta. The that the Board’s decision is
opinion is and, procedure a defective
product of
therefore, Why expend initio. so void ab a Board judicial ink on the merits of
much legal nullity? There
decision Board decision for this Court
simply no
affirm, here. modify, or reverse 7252(a) (setting forth this Court’s decisions). to review Board
jurisdiction have on future effect will these dicta
What written, ap-
proceedings? The sever provide template
pears future, if it in the appellant’s benefits And, ma- although do
chooses to so. merits of
jority reaching states that necessary “so to claim is Secretary’s contention
fully address prejudiced was not EAP,” Majority Decision
the use of the can
n. I do not how the Court analysis of a a harmless error
perform Thus, that does not exist.
Board decision majority maintain that respectfully
I finding to a have limited its decision
should initio void ab
that the Board 2007 DRO decision
and that the June reinstated.
should be see R. 262-70. The notes factor aggravation [of] of the condition which appellant reported having pain incurred to service.” R. at 164. The hip his while he served in North Africa rating board concluded that “the increase Sicily Army and that called it disability the level of “necrosis,” during service was but that the “Veteran’s Bureau solely due progress natural to be [the] diagnosed it as arthritis.” R. at 262. A
Notes
notes June order, stating that “if reinstate promulgated, [would] compensation payments entitlement extraordinary process award has rating decision were severed been found Ap- [U.S. Court of March 1950.” R. at 58. The (Federal dated peals for the Federal Circuit explains rating Circuit) letter that the March 1944 invalid[,] to be and that ] find- granting “was in error for ser- ing, by necessity, affords August arthritis, secondary connection for [; legal 2007 SOC no force or effect ... viced hip, to dislocation of the left [because extraordinary pro- for the b]ut ag- evidence of record did not show t]he VA, implemented improperly by cess gravation.” Noting proposed appeal would not have occurred as promulgat- decision “should not be sought granted the benefit had been ed,” the letter states that “available evi- the June 2007 DRO decision and there