*1 (D.C.Cir.1982) (“Oral F.2d 7 n. 17 argu- the benefits sought.” R. 4. at In his mo- ment on appeal is the proper time to tion for panel reconsideration, Mr. Unta- advance arguments new legal lan, theo- offering so much as a scintilla ries”)- Although jurisdiction is a matter of authority, asserts “an award of VA that may be raised any time, couching benefits is a necessary predicate to forfei- arguments new under the ju- umbrella of ture.” Motion at 7. Not only was that risdiction at oral argument is not a recom- argument not briefed argu- oral mended or helpful practice. ment, it is without support and it illogi- cal because it would compel go VA to III. CONCLUSION through the step useless bene- awarding 21, 2006, Court’s June opinion in only fits then declare right to them this matter is withdrawn and opinion forfeited. Mr. Untalan is simply incorrect is issued in its stead. For the foregoing in his assertion that his 1972 claim could reasons, June decision of the have remained open despite the October Board is AFFIRMED. 1976 forfeiture decision. HAGEL, Judge, filed concurring
opinion.
HAGEL, Judge, concurring:
Although majority answering avoids
the question of whether Mr. Untalan’s
1972 claim remains pending and unadjudi- cated, to the extent that the majority sug- McGEE, Robert L. Appellant, gests that such a scenario possible, I separately write to dispel any such notion. (“The See ante at 471 R. James NICHOLSON, existence pend- of a ing unadjudicated Affairs, Veterans Appellee. for disability benefits has bearing no jurisdiction No. 04-468. address Mr. Untalan’s subsequently filed claim for United the same States ben- Court Appeals efits.”). for Veterans Claims. In the Board decision on appeal, the Argued April 26, 2006. Board “declined to reopen [Mr. Untalan’s] Decided Oct. claim for disability compensation benefits that had been forfeited pursuant to 38 3504(a).” See ante at 468. A
claim cannot be subject of a claim to
reopen unless it has been “disallowed.” 38 Indeed, to the extent that
it remained unadjudicated, Mr. Untalan’s
1972 claim was undoubtedly disallowed
the October 1976 decision determining that
he had forfeited any right to receive VA In that regard, the Board cor-
rectly concluded that “the October 1976
decision remains final and is a legal bar to *2 (Board) decision Appeals
Veterans’ effective him an denied the Board which grant 15,1999, for April than date earlier with for sarcoidosis connection of service disease. pulmonary obstructive chronic to 38 pursuant jurisdiction has The Court 7266(a) review §§ and Be- Board decision. February herein, we hold cause, provided for reasons “applicable not an § 1218 is that 10 U.S.C. of meaning law” within ] provision[ 7104(a), affirm will we appeal. on decision
I. FACTS duty in served on Mr. McGee Sep- May 1968 from Corps U.S. Marine 1970, he was August In tember board evaluation physical to a referred “sarcoidosis, associated diagnosis awith ventilatory de- restrictive a severe with (R.) physical The Record fect.” to per- him unfit found board evaluation disabil- physical his duties form 1970, separated he was September In ity. temporary on placed service and list. disability retired aVA sent 1999, McGee April In he asserted in which letter Ohio, Cincinnati, for Cook, of Barbara J. disability— lung service-connected appellant. lungs disabling 30% rated —and Tim S. whom Rogall, Leslie C. In again. R. bothering him were Counsel; Randall McClain, General office regional a VA February Counsel; and General Assistant Campbell, sarcoi- connection him service awarded Gen- Assistant Moriarty, Deputy E. Joan a 30% condition assigned that and dosis D.C., were Washington, Counsel, all of eral 17, 2000. July effective rating, disability appellee. the brief on disabili- increased that office regional 2001 deci- August in an rating 60% ty MOORMAN, HAGEL, Before rating Mr. McGee sion, assigned SCHOELEN, Judges. unem- individual on disability based total Board Appeal On de- appealed ployability. Appeals. of Veterans’ he is entitled basis that cision HAGEL, Judge: service-con- for his date effective earlier re- In June sarcoidosis. nected L. McGee’s Robert Court Before Febru- him informed office gional 12, 2004, February appeal from ary 2001 regional office decision was the argument, contends that the product of clear and unmistakable error Board had no obligation to consider 10 was the proper § 1218, because that per- statute effective date for the award of service tains to the propriety of military discharg- *3 connection for sarcoidosis. See at 215- es, and the proper forum for considering 16. That decision premised an alleged violation of that statute is the fact that the claim for an increased disabil- U.S. Court of Thus, Federal Claims. he ity rating was filed within year one of the argues that VA “has ... no responsibility mailing to Mr. McGee of VA claim form to apply the laws regarding military dis- in response April to his 1999 letter. R. at charges when determining the effective 216. Mr. appealed McGee that decision on date of a claim.” Id. at 13. the basis that ishe entitled to an effective date earlier April 15, than 1999. That II. ANALYSIS issue reached the Board and was sub- A Board determination of proper
ject of the February 2004 decision on now effective date is a finding of fact. See appeal. Brown, Hanson v. 29, (1996). 9 Vet.App. 32 In decision, the Board Mr. denied The Court reviews Board factfinding un McGee an effective date prior 15, to April der the “clearly erroneous” standard of 1999, for service connection for sarcoidosis. review. § 38 7261(a)(4); U.S.C. see Gil In so doing, the Board concluded that Derwinski, bert v. 1 49, (1990). 52 “there is no evidence of receipt of a Under 38 § U.S.C. specifi “[u]nless written informal, formal or for ser- cally provided ..., otherwise the effective vice connection for sarcoidosis ... until date of an award based on an original 15,1999.” R. at 4. claim ... or a claim for ] of increase! compensation ... appeal,
On shall be fixed in accor raises a single dance with argument found, the facts but shall not “[t]he Board be erred in fail- —that earlier than ing to date consider apply receipt or applica U.S.C. 1218.” tion (Br.) therefor.” See 38 C.F.R. Brief particular, 1. In 3.400 (2005). In addition, he contends rendering that that its deci operates statute to sion, pursuant create a to U.S.C. presumption that he filed a claim Board is obligated to consider “applicable benefits for lung his condition provisions “when of law he and regulation” was released in clude 1970.” Id. at decision a 3. In written support of that statement of argu- ment, the reasons or he bases for its findings asserts “the conclusions doubt on all rule material mandates that issues of fact the VA find presented law signed [he] record. bene- 7104(a), (d); fits.” Id. at 6. Allday Brown, He see asks the Court to vacate 7 Vet.App. decision on appeal and grant to him an earlier effective or date to remand Here, Mr. McGee argues that the Board to the readjudication Board for under violated section failing con- 1218. Id. at 7. sider and apply which he
In response,
contends is an applicable
the law.
asserts that
Appel-
See
lant’s Br.
Court should
That
provides,
consider Mr.
statute
McGee’s
pertinent part,
as
never raised
follows:
it be-
fore VA. See Secretary’s
(a)
Br. at
If
A member of an armed
may
force
the Court should
address
not be discharged or released from ac-
States, 25
Quailes v. United
See
disability Claims.2
physical
duty because
tive
(1992)
plaintiffs
(noting
659, 662
Cl.Ct.
until he—
separation
his
compensa-
(1)
has made
because,
among other
improper
to be
hospitalization,
tion,
pension,
violated
separation
things,
of Veterans
Department
with the
filed
States,
Barney v. United
1218);
also
make
such
Affairs,
refused
or has
(2003) (noting plaintiffs
76, 79
Fed.Cl.
claim; or
“disabili
entitled
he was
argument that
(2)
a statement
signed
has
pursuant
retirement”
ty
been
has
such
to make
right
wrongfully dis
he was
§ 1218 because
him, or has refused
service).
Secretary is
charged from
*4
a statement.
sign such
proper
the
is not
this Court
that
correct
below,
1218(a).1
explained
10 U.S.C.
Denton
challenge. See
for such
forum
unpersua-
contention
Mr. McGee’s
(9th
we find
Cir.
486-88
605 F.2d
Schlesinger,
§ 1218
that
conclude
sive and
1979)
Court
that
the U.S.
(holding
of law within
provision
applicable
by
not an
a suit
for
forum
proper
the
was
Claims
7104(a) and
meaning of 38-U.S.C.
Marine
Navy
the
and
officers
junior
Board did
that,
damages
the
and
consequence,
money
aas
sought
Corps who
provision
wrong
that
allegedly
to consider
failing
in
for their
injunctive
err
relief
Br. at
Secretary’s
see also
discharges);
law.
ful
§ 1218 im
view, 10 U.S.C.
In our
13-14.
terms,
is directed
1218, by its
Section
Secretary of
the
upon
obligation
no
poses
cer-
presents
military
and
officials
towards
provide for
fails to
and
Affairs
Veterans
be satisfied
that must
requirements
tain
cont
remedy in the veterans-benefits
any
discharge
a servicemember’s
prior to
ext.3
place
does
Forces —it
Armed
the U.S.
§ 1218
Vet-
Secretary of
hold that
we
obligation upon
Because
any
context, it follows
provision
that
in this
inapplicable
A violation of
erans Affairs.
that stat-
that
dis-
improper
in an
that Mr. McGee’s
result
might
of law
the doubt
subsequent
with the
coupled
military and
ute
charge
...
find
VA
could be
“mandates
which
doctrine
military pay,
entitlement
for bene-
signed an
[he]
time-
filing of a
by the
challenged
properly
6.
Br. at
merit.
is without
fits”
of Federal
Court
in
U.S.
ly action
entire
based
... be
Board
unchanged
sions
sub-
remained
statute has
1. The
upon consider-
and
proceeding
separation from
record in
stantively
McGee's
since Mr.
material
record
and
ation
all
in 1970.
service
regula-
and
of law
provisions
called
Claims
Federal
Court of
The U.S.
superficial,
is far from
distinction
tion.” That
its name
Claims before
Court of
the U.S.
cases
both
questions at issue
as the
in 1992.
changed
determina-
involved
Bates
very different.
juris-
possesses
Board
whether the
as to
tion
applicability of
We have considered
challenge
attorney's
over
diction
v. Nichol-
Bates
decision
Circuit’s
attorney’s
Secretary of the
termination
(Fed.Cir.2005),
find
son,
F.3d
before
represent claimants
concerned
accreditation
Bates
here.
inapposite
to be
involves
511(a)
case
This
VA. 398 F.3d
interpretation of 38
legal
of deter-
whether
purpose
as to
a determination
light
obligation
whereas
statutory
jurisdiction,
mining
complied
the Board’s
with
compliance,
law not
only
particular
Board's
concerns
to consider
of its failure
thereof,
sentence
the last
lack
U.S.Code.
or
38 of the
title
within
found
7104(a),
requires
"[d]eci-
which
Moreover, even were we to assume for
Ms discharge
from active
argument’s
sake that 10 U.S.C.
1218 duty
merit,
1970—is
we cannot
here,
apply
conclude
the Board erred in determin
unavailing.
remain
That is so be
ing that “there is no evidence of VA re
cause the statute itself
require
does not
ceipt
of a written
informal,
formal or
filing
of a claim
In
for service connection for
sarcoidosis
stead, the
merely provides
statute
that a
until April
1999,” and assigning that
“may
servicemember
not be discharged or
date as the effective date for his award of
released
from active
of physi
4;
connection
sarcoidosis.
atR.
cal disability” unless one of the following
Gilbert,
Because Mr. McGee’s lone argument— Navy officials, in keeping with the that the of 10 terms compel presumption of regularity, ensured that he a conclusion that he filed a claim for VA applied either for VA prior benefits to his dissenting colleague Our that Specifically, "[i]n believes when asked whether he had a case where a claimant who has been dis- "come into anyone with contact who could charged military from the physi- because of a have advised [him] of a need to file a claim disability alleges cal that he applica- filed benefits,” an compensation replied he "I tion for prior VA benefits discharge, his didn’t come into contact anybody.” with and there is no evidence of applica- such an at 281. When asked whether he was "briefed tion, 1218 is relevant.” Post at necessity as to file a above, 479. Although, [VA],” as we dis- responded he way.” ”[n]o R. at 284. agree conclusion, legal with that Court, even assum- Before the argument his does not con- ing argument’s correct, sake that it is tradict testimony his before the Board—his McGee has not asserted that actually he filed argument, it, current as we understand is that a claim for VA benefits before he was re- even if failed to file an actual moved from the temporary disability retired law presumption creates a that he did. See fact, list in 1976. In hearing at Board Appellant’s Moreover, Br. at 3. even if Mr. September 2003 he asserted that he was not argument were actually that he filed advised before his tempo- removal from the prior service, leaving success on rary disability retired list that he could file a that depend would on factual deter- ("When claim for VAbenefits. See R. at 281 I minations and not on the of 10 out, they left do.”). didn’t tell me what to U.S.C. 1218. (citing Weinstein’s Evi Federal to do duty or refused active from release (2d ed.1997); 301.02[1], at 301-07 documentary of absence so, dence 342, at oc- and 2 options on Evidenoe of to which McCormick as evidence ed.1992)). ed., 4th (John Strong W. dictates the doubt curred, benefit of to his prior for VA he applied Mr. McGee’s flaw with fundamental this duty because active release of doubt the benefit is that for Mr. option most favorable be the contrary, To the presumption. effect, In Br. at 5-6. Appellant’s McGee. unique standard is the of the doubt the doubt benefit of treats the claims in decisions applies proof of which he evidentiary presumption, an as rec- this Court for veterans documentary lack of argues “excuses Derwinski, Vet.App. in Gilbert ognized that he assertion support evidence” proof’ (1990), term “standard to his in 1970 applied which threshold “evidentiary to the refers Br. duty. Appellant’s release prevail.” in order litigant must achieve Br. at 4-5. 5; Reply system, judicial the American Within assumption involves presumption A proof cover standards forms of various known exists, based a fact most from the ranging spectrum wide fact or some other existence proven doubt” reasonable “beyond a stringent See of facts. group DICTIO Law Black's less to the in a criminal standard However, ed.1999). (7th NARY preponderance fair “by a restrictive Appeals the U.S. Court Court Within case. in a civil standard” pre have held Circuit Congress adjudicatory system, the VA *6 v. Routen not evidence. are sumptions restrictive least use the mandated (Fed.Cir.1998) 1434, 1440 West, 142 F.3d de- when standard the doubt” of “benefit H. Graham, (citing 1 Michael of Handbook Id. at for veterans claims ciding & 156-57 301.10 at Evidenoe 1996) (“It univer (4th is now ed. 1-3 nn. 5107(b), a vet- 38 Pursuant ais presumption a sally recognized the of the “benefit entitled eran is evidence, of handling the of law rule bal- “approximate is an there when doubt” evidence.”) J. Ronald and species of not evidence.” negative and positive of ance Bur and Inferences, Allen, Presumptions, this Court Gilbert, Vet.App. 1 Actions —An Federal Civil den Proof of “[tjhis Gilbert, unique stan- recognized and Unnecessary Ambiguity Anatomy of high with the keeping inis proof of dard 72 Reform, N.W. Proposal U.L.Rev. those holds our nation in which esteem not evi (1982) are (“Presumptions 892, 903 Armed Services. have served who to decisions applied they are labels dence— to our debt of our recognition It matters.”)); also evidentiary about upon taken society has veterans (2006) 1, Nicholson, 8 20 v. Kent when, in determin- error the risk of itself are although presumptions (stating that bene- is entitled a veteran ing whether evidence, they are handling of law rules of balance ‘approximate fits, there is an evidence). considered themselves not ” at Id. evidence.’ negative positive fill in an may presumption though Even is a the doubt of benefit Because ordinarily have that would evidentiary gap when all applies proof, of standard evidence, con when by more filled to be Board assembled, evidence rebut is submitted trary evi- whether its determination makes evidence, pre true unlike presumption, relative is in claim or supports Routen, dence 142 F.3d disappears. sumption 478 (the
equipoise veteran prevailing in either consider and decision, discuss all event), or whether a preponderance fair of “potentially applicable” provisions of law against evidence is in which regulation. Derwinski, v. Schafrath case the 55; claim is Id. at 589, (1991) denied. see Vet.App. added); (emphasis also 38 C.F.R. 3.102 (stating that see also Weaver v. Principi, 14 Vet.App. “[w]hen after careful 301, (2001) consideration of all (per order); curiam San procurable data, and assembled a reason- Derwinski, den v. 97, 2 Vet.App. able doubt arises regarding service con- nection, degree disability, any The majority cites no authority for its point, other such doubt will be resolved in interpretation 7104(a). narrow of section claimant”).
favor of the There is no discussion of how plain Thus, contrary to Mr. McGee’s argu- language the statute supports such a ment, the benefit of the doubt does not construction. The statute contain relieve him the burden of having to restrictive criteria on its A scope. funda produce actual support evidence to his con- mental canon statutory construction is tention that applied for service-connect- that when interpreting statute, the words ed prior Further, of a statute given “their ordinary, con doubt, conjunction temporary, common meaning, absent an 1218, with section does not create evidence indication Congress intended them to bear otherwise missing from the record to be some different import.” Williams v. Tay weighed in Mr. lor, McGee’s favor 420, when the 431, 529 U.S. 1479, 120 S.Ct. Board determines whether the evidence is (2000); L.Ed.2d 435 Smith United in equipoise. Accordingly, States, actual 508 U.S. 113 S.Ct. documentary evidence to indicate (1993) L.Ed.2d 138 (citing Perrin v. Unit McGee applied for VA States, to his ed 42, 100 U.S. S.Ct. release from duty, may (1979) L.Ed.2d 199 (stating that “words [in assume he exercised option statute], unless defined, otherwise will be under section 1218. interpreted as taking their ordinary, con *7 temporary, common meaning.”)). The
While I agree with the majority regard- “applicable” word is defined as “that can ing Mr. McGee’s benefit of the doubt argu- be applied; appropriate.” Webster’s New ment, I respectfully majori- differ Dictionary English WORLD of American ty’s view that the Board does not have a (3rd ed.1988). College A synonym for “ap duty to consider § 10 U.S.C. 1218. The plicable” is “relevant.” “Relevant,” Id. majority concludes that section 1218 is not defined as “bearing upon or relating to the an “applicable law” within the meaning of hand; in matter pertinent; point.” to the 7104(a) § it imposes because “no Id. A statute can be relevant and obligation upon the Secretary and fails to therefore even if it does not provide any remedy in the veterans-bene- impose a duty on the Secretary provide or fits context.” Section provides, in a remedy for its violation. pertinent part, that “[decisions of the Board shall be based on the entire Here, record face, on its im- in the proceeding and upon poses consideration duty a on the Armed Services that is of all evidence and material of record relevant to adjudication. veterans benefits applicable provisions of law regula- Prior to a servicemember’s discharge or tions.” This Court long has held that this release from duty phys- because of a statutory provision requires the Board to ical disability, the Armed Services must VA medical from other records cal and has either the servicemember that ensure Federal from other facilities; and records declined or benefits for VA made 5103A(b); 38 See 38 agencies. the case As in a claim. make such to 3.159(e)(2) may VA cease question Court, key factual C.F.R. a before a Federal from records resolved, many earlier- to obtain efforts be that must that if it concludes cases, a determina- or agency involves department effective-date that appli- or filed an do not exist sought the claimant the date the records tion of records The resolution those obtain efforts to cation for VA further 5103A(b); docu- the available upon turns 38 U.S.C. issue futile. this be See a where 3.159(c)(2). In a in which mentary evidence. Cases 38 C.F.R. discharged has efforts who been no further claimant may conclude VA disability a physical military because in which those include required VA application an he filed alleges that advises agency or department discharge or his release exist, or not records do requested that the is no evidence there duty, and from active have them. not does custodian § 1218 is 10 U.S.C. application, an of such notify a claim- required then VA is Id. pertinent it indicates relevant because to ob- efforts it made reasonable ant that service veteran’s may exist in records but records her Federal or tain his that an his claim support file to personnel it was them to obtain unable either was filed. ef- any additional reasonably certain law” “applicable Thus, statute is fu- would be records such forts to obtain 7104(a) be- meaning of section within 3.159(e). 38 C.F.R. tile. See a of evidence points source cause a assist duty to Secretary’s Whether for VA ben- a veteran’s support may obtaining triggered has been claimant Additionally, although section efits. when records personnel relevant Secretary, it duty on the impose military discharged veteran duty to assist potential effect has fac- certain disability involves perti- facts developing the a claimant be made that should tual determinations 5103A. to his claim. See nent instance. the first Board in by the there is recognized, Court has ef- potential discuss the majority does to assist upon VA obligation continuing Secretary’s § 1218 on fect of pertinent the facts developing veterans may be This assist. statutory ad- the entire throughout their claims view that majority’s by the Dingess v. adjudication. See ministrative ap- in his single argument amade (2006); Nicholson, failing *8 erred the Board peal Derwinski, 2 Vet.App. —that Murincsak also that, 10 § 1218 10 U.S.C. consider 5103A(b), 38 U.S.C. Under the ben- conjunction with in making “rea- includes to assist duty VA’s doubt, a conclusion compels efit records,” relevant to obtain sonable efforts benefits for VA filed Mr. McGee “adequately identi- claimant long so as duty in from active to his release prior Secretary and to records fies” those description of apt This an them. Secretary to obtain authorizes briefs. appellant’s made argument 5103A(b)(l); v. Ni- Loving 38 U.S.C. on founded was (2005). That 96, 101-02 cholson, in evidence that other assertion McGee’s include, but could records Relevant allegation contradict did not the record records, including ser- to, military limited application an had filed records; that he medi- personnel medical vice prior benefits to his release from law within the meaning of 38 U.S.C. See duty. 7104(a). Br. at However, on the eve of oral argument, case, In this the record does not contain sought permission supple- application for service for a connection ment the record on appeal with Mr. lung disability by the appellant prior filed application for educational April 1999. Additionally, there is benefits, in which appellant indicated mixed evidence as to appel- whether the that he had not any prior filed claim for lant alleges that he filed a claim for VA VA benefits. In light of this docu- new prior April benefits 1999. On the one ment being record, added to the hand, there is appellant’s 2000 formal argument. refined his In his writ- application for service connection for a ten response to supplemental record lung disability in which he indicated that appeal, Mr. McGee stated that he was he had previously applied for VA benefits. withdrawing his argument reversal, hand, at 73. On the other there is the seeking remand, was which he indi- for educational cated was the appropriate relief because which he indicated that he had previ- the evidence of no longer record contained ously applied for VA benefits. Mr. McGee only permissible one view of the evidence asserts in his briefs that he filed a claim and that a remand appropriate for the prior VA benefits to the date that he Board weigh all of the evidence and to was discharged from active duty determine the need for develop- further factor that would key be in triggering any ment of the accordance with by duty VA to obtain his personnel service VA’s to assist. However, records. it is unclear from the At argument, oral Mr. McGee contended evidence whether he actually alleged that the Board’s failure to consider 10 he filed such an application. All of these 1218 led to its error in determin- are factual issues that adjudi- need to be ing whether Mr. McGee applica- filed an Board, cated instance, the first as tion for VA part of its consideration of 10 U.S.C. fully without a Further, developed record. § 1218 and the potential statute’s effect on argued that the Board’s consideration the Secretary’s duty to assist. of section 1218 require it to remand the RO with instructions that Accordingly, I respectfully dissent from alia, RO seek to obtain, inter appel- the Court’s decision lant’s personnel file. He stated not an provision within the only after such development 7104(a). meaning of 38 U.S.C. occurred the Board would be in a position to decide whether the appellant
had filed claim for service connection for
his lung disorder prior to April 1999. I
agree and note that part appel-
lant’s why illustrates
§ 1218 should be *9 considered