Routen v. West

• Decision Date: 30 April 1998
• Docket Number: No. 97-7064,97-7064
• Citation: 142 F.3d 1434
• Parties: Brian E. ROUTEN, Claimant-Appellant, v. Togo D. WEST, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1434

142 F.3d 1434

Brian E. ROUTEN, Claimant-Appellant, v. Togo D. WEST, Secretary of Veterans Affairs, Respondent-Appellee.

No. 97-7064.

United States Court of Appeals, Federal Circuit.

April 30, 1998.

Gary L. Beaver, Patton, Boggs, & Blow, of Greensboro, NC, argued for appellant.

Armando O. Bonilla, Atty., Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, of Washington, DC, argued for appellee. With him on brief were Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, and Anthony H. Anikeeff, Asst. Director. Of counsel on brief were Donald E. Zeglin, Deputy Asst. Gen. Counsel, and Nicole Sideris, Atty., Dept. of Veterans Affairs, Office of General Counsel, of Washington, DC.

Before: PLAGER, BRYSON, and GAJARSA, Circuit Judges.

Opinion of the court filed by Circuit Judge PLAGER. Circuit Judge BRYSON concurs in part and dissents in part.

PLAGER, Circuit Judge.

This case addresses the circumstances under which a veteran may reopen or otherwise obtain reconsideration of a case previously closed. Brian E. Routen appeals the decision of the Court of Veterans Appeals, case No. 95-673 (Apr. 9, 1997), in which the court upheld the denial by the Board of Veterans Appeals ("Board") of Mr. Routen's application to reopen his claim for disability benefits. Because the establishment by the Department of Veterans Affairs ("VA") of a different evidentiary standard of proof for the Government to rebut a burden-shifting presumption relating to the presentation of evidence does not serve either as "new and material evidence" or as a substantive change in the law creating a new cause of action, we affirm.

BACKGROUND

In April 1977, Brian E. Routen attempted to enlist in the U.S. Navy. As a result of his enlistment examination, he was deemed medically ineligible to enlist due to psoriasis on his legs, a disqualifying skin disease. Following the submission of a letter from his personal physician noting that the rash was successfully treated and was just an "eczematous patch ... with secondary infection," Mr. Routen's entrance medical examination record was changed from psoriasis to episodic eczema, and he entered the naval service. Mr. Routen served on active duty less than a year, from December 1977 to October 1978.

Not long after entering service, Mr. Routen complained of itchy, scaling skin. His condition was diagnosed by Navy doctors as psoriasis; he was treated for scaling on the knees, elbows, and palms, a condition which continued. Then, in September 1978, a Medical Board reviewing Mr. Routen's medical fitness for continued military service wrote that "[i]t is the opinion of the Board that [Routen] ... is unfit for further Naval Service by reason of a physical disability which was neither incurred in, nor aggravated by, a period of active military service." Based upon a finding that Routen had developed the disease two years before enlistment, the Board reported a final diagnosis of psoriasis vulgaris, concluding that the disease "[e]xisted prior to enlistment/Nonservice aggravated." Mr. Routen was given a medical discharge from the Navy.

Not long thereafter, in January 1979, Mr. Routen filed a claim with the Veterans Administration for disability benefits based on his psoriasis, alleging that the disease was service connected. As a general matter, a veteran who has served in the armed forces during peacetime is entitled to compensation for a disability resulting from a disease contracted in the line of duty, or for aggravation of a preexisting disease caused in the line of duty. See 38 U.S.C. § 1131 (1994); 38 On January 30, 1979, the Veterans Administration Regional Office ("VARO") denied Mr. Routen's claim with the notation that the psoriasis was "neither incurred in nor aggravated by his short period of active duty." Mr. Routen did not appeal from that determination; the decision became final.

C.F.R. § 3.4(b) (1997). A veteran must establish service connection of the disability for entitlement to compensation. Service connection "may be accomplished by affirmatively showing inception or aggravation of the disability during service or through the application of statutory presumptions." 38 C.F.R. § 3.303 (1997).

Later in 1979, Mr. Routen again sought disability benefits for his skin condition. Treating his application as a request for reconsideration, the VARO, on July 10, 1979, again denied his claim. Some nine years later, in May 1988, Mr. Routen applied yet again for veterans benefits, and again the VARO denied his claim. The record does not indicate that any of these later denial decisions by the VARO were appealed.

Then in September 1992, Mr. Routen filed an application to reopen his claim. He presented medical treatment records documenting a long history of care for his psoriasis to establish service connection. See 38 C.F.R. § 3.303(a). The VARO in December 1992 denied Mr. Routen's application on the basis that he had not submitted new and material evidence. See 38 U.S.C. § 5108 (1994); 38 C.F.R. § 3.156. This time Mr. Routen appealed the determination of the VARO to the Board of Veterans Appeals.

The Board in April 1995 affirmed the decision of the VARO without reaching the merits of the claim, determining that the new records were not new and material for the purpose of reopening Routen's claim. The Board apparently did not consider the effect of a 1992 change in 38 C.F.R. § 3.306(b), which had the effect of raising the evidentiary burden required of the Government when it seeks to overcome the presumption of service-caused aggravation available to peacetime service veterans who demonstrate an increase during service of a pre-service disability.

On Mr. Routen's subsequent appeal to the Court of Veterans Appeals, that court affirmed the Board's decision, finding that neither the newly submitted medical records, nor the change in the presumption of aggravation rule constituted "new and material" evidence sufficient to reopen Routen's claim. This appeal followed.

DISCUSSION

I

This court has limited jurisdiction in reviewing decisions of the Court of Veterans Appeals. See 38 U.S.C. § 7292 (1994). With regard to the question of whether Mr. Routen's newly submitted medical records qualify as "new and material" evidence sufficient to reopen a claim pursuant to 38 U.S.C. § 5108, we are without jurisdiction. Viewed either as a factual determination or as an application of the law to the facts of a particular case, that is a question over which the Court of Veterans Appeals has final authority. See 38 U.S.C. § 7292(d)(2) (1994); see also Spencer v. Brown, 17 F.3d 368, 374 (Fed.Cir.1994). We do, however, have jurisdiction to review the decision of the Court of Veterans Appeals with regard to its interpretation of the governing statutes and the 1992 change in the regulations regarding the presumption of aggravation made pursuant to those statutes. That review is independent and anew.

II

Mr. Routen's several claims during the 1970s and 1980s for disability benefits, beginning with the initial claim in 1979, were all disallowed by the Veterans Administration. No appeals therefrom were taken, and they became final dispositions. Basic principles of finality and res judicata apply to such agency decisions. "A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided [under the 'clear and unmistakable error' rule]." 38 C.F.R. § 3.104. See also Astoria Fed. Savs. & Loan Ass'n v. Solimino, 501 U.S. 104, 107-08, 111 S.Ct. 2166, 2169-70, 115 L.Ed.2d 96 (1991) (allowing the Under existing law there are three grounds on which a veteran may seek further consideration of a previously closed case. The first ground, specified by statute, is to show that there was a "clear and unmistakable error" in the determination being reviewed. 38 U.S.C §§ 5109A (reviewing Secretary decisions) & 7111 (reviewing Board decisions) (Supp. IV 1998). The pertinent regulation specifically states: "Previous determinations which are final and binding ... will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended." 38 C.F.R. § 3.105(a) (1997).

application of res judicata to administrative agency determinations that have attained finality); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed.Cir.1996) (determining that the court lacked jurisdiction to review the Court of Veterans Appeals' decision affirming the Board's denial of Barnett's request to reopen her claim because no new and material evidence was presented); Livingston v. Derwinski, 959 F.2d 224, 225-26 (Fed.Cir.1992) (finding no jurisdiction to review Livingston's allegation that the Court of Veterans Appeals misinterpreted the Board's finding of "no new factual basis" for refusing to reopen Livingston's claim). Unless otherwise provided by law, the cases are closed and the matter is thus ended.

A second ground, again statutory, under which a previously closed case may be reopened is to present "new and material evidence" sufficient to reopen the claim. "If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." 38 U.S.C. § 5108 (1994). See 38 C.F.R. § 3.156 (1997).

Thirdly, as a matter of basic law, we have held that under appropriate circumstances an intervening change in the applicable law may entitle a veteran to receive consideration of a claim, even though the claim is based on essentially the same facts as those in a previously adjudicated claim. See Spencer, 17 F.3d at 372-73 (treating such a claim as new and thus avoiding the requirements for reopening under 38 U.S.C. § 5108). In this case, Mr. Routen raises grounds two and three, both, however, keyed to the existence of a new (1992) change in the level of...