Donovan v. West, 98-7019

Citation158 F.3d 1377
Decision Date26 October 1998
Docket NumberNo. 98-7019,98-7019
PartiesThomas R. DONOVAN, Claimant-Appellant, v. Togo D. WEST, Jr., Secretary of Veterans Affairs, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Robert V. Chisholm, Chisholm & Chisholm, of Providence, RI, argued for claimant-appellant.

Agnes Brown, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for respondent-appellee. With her on brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Sharon Y. Eubanks, Deputy Director. Of counsel on brief were Donald E. Zeglin, Deputy Assistant General Counsel, and David J. Barrans, Staff Attorney, U.S. Department of Veteran Affairs, of Washington, DC.

Michael P. Horan, Associate General Counsel, Paralyzed Veterans of America, for amicus curiae Paralyzed Veterans of America.

Before PLAGER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

This appeal presents a question about the meaning and effect of a regulation of the Department of Veterans Affairs (VA), 38 C.F.R. § 3.105(a) (1997), providing that otherwise final determinations of the agency's regional offices will be "reversed or amended" if there is "clear and unmistakable error." The appellant Donovan contends that under this provision he may challenge a final decision of the VA regional office denying his claim for a service-connected disability, despite an intervening decision of the VA Board of Veterans' Appeals that rejected his claim. The Court of Veterans Appeals denied Donovan's contention. We agree, and therefore affirm.

I

The underlying facts are undisputed. Donovan served in the Army from 1941 to 1945. In 1946 he applied to the VA (then known as the Veteran's Administration) for benefits for various disabilities, including "Stomach Condition," "Headaches," and "Nervous Condition." A July 1947 VA physical examination indicated that Donovan had gastric neurosis and psychoneurosis secondary to gastrointestinal disturbance.

In 1947, the VA regional office, where Donovan had filed his claim, denied the claim based on lack of "service responsibility for gastric neurosis and psychoneurosis." Donovan did not appeal that decision to the Board of Veterans' Appeals, and the decision became final one year later. See 38 U.S.C. § 7105(c) (1994). That provision further provides that "the claim will not thereafter be reopened or allowed, except as otherwise provided by regulations not inconsistent with this title." A VA regulation provides for reconsideration of such final claims if they Thirty-eight years later, in 1985, Donovan filed another claim for benefits, this time based on Delayed Post Traumatic Stress Disorder (Stress Disorder). After a VA psychiatric examination concluded that Donovan did not have that condition, the regional office denied the claim. This time Donovan appealed the denial to the Board of Veterans' Appeals.

involve "clear and unmistakable error." 38 C.F.R. § 3.105(a). In addition, the Secretary must reopen and review a claim if "new and material evidence is presented or secured." 38 U.S.C. § 5108 (1994).

The VA conducted another psychiatric examination, which also concluded that Donovan did not suffer from Stress Disorder. After a hearing, the Board in May 1988 held that "[e]ntitlement to service connection for a chronic acquired psychiatric disability, to include post-traumatic stress disorder, is not established," and denied the appeal. The Board noted that in 1947 Donovan had been "denied entitlement to service connection for gastric neurosis and a secondary psychoneurosis," that "[i]n 1985, the claim was reopened and was expanded to include consideration of entitlement to service connection for post-traumatic stress disorder," and that "the Board has reviewed the entire evidence of record and is making a de novo determination."

The Board stated that "[a] review of the service medical records reveals normal psychiatric status" and that in a VA 1947 examination:

[t]he veteran exhibited no asocial or psychotic trends. He displayed no particular tension or apprehension. He was primarily concerned with nausea and vomiting of several years' duration. The diagnoses were gastric neurosis and secondary psychoneurosis.

The Board concluded:

[t]he Board has carefully considered all the evidence of record and is mindful of the requirement that all reasonable doubt must result in favor of the veteran. While we do not doubt that the veteran experienced traumatic events during the war, the evidence since his discharge from service does not demonstrate that he has a psychiatric disorder, including post-traumatic stress disorder, as a result of that service. Two recent special psychiatric examinations found no psychiatric disorder.

The Board found that "[a] chronic acquired psychiatric disorder was not present during active service," and concluded that "[a] chronic acquired psychiatric disability, to include post-traumatic stress disorder, was not incurred in or aggravated by active service."

Donovan tried again in April 1991, this time with more success. He asserted that it was "clear and umistakable error to deny service connection" for his "chronic acquired psychiatric disability," in view of the "diagnosis of psychoneurosis" made in July 1947, the "complaints" shown by the record, and his "heroic achievement in connection with military operations against an enemy of the United States," for which he was awarded a bronze star.

Two VA psychiatric examinations then concluded that Donovan had Stress Disorder. The regional office reopened his claim--presumably because of this new and material evidence--and granted service connection for Stress Disorder with disability payments effective November 5, 1991.

Donovan then requested that the payments be made retroactive to July of 1947, "when the diagnosis of psychoneurosis was made." The regional office denied that request and Donovan appealed that ruling to the Board of Veterans' Appeals which, after an informal hearing, affirmed in 1995. The Board found that "[T]he claim of clear and unmistakable error in the August 4, 1947 RO denial of service connection for a psychoneurosis does not have legal merit." The Board stated that in its 1988 decision:

the Board noted that a claim for service connection for a psychoneurosis was denied by the RO in August 1947. The veteran did not appeal the 1947 RO decision so, as a consequence, it became final. See 38 C.F.R. § 20.1103 (1994). The Board also found that, neither the evidence available when the RO took action in 1947, nor that available thereafter, provided a factual basis for granting the claim of service connection, in effect denying the claim The Board cited a precedential opinion of its general counsel which bound it, see 38 U.S.C. § 7104(c) (1994), as ruling that "a claim of clear and unmistakable error under 38 C.F.R. § 3.105(a) concerning a final, unappealed RO decision may not be considered where the Board has previously reviewed the entire record of the claim following subsequent reopening and has denied the benefit previously denied in the unappealed decision." The Board held, however, that the proper date for the beginning of benefits was May 1, 1991 and not the later November date the regional office used.

of service connection on the merits. Indeed, it was expressly noted that the claim was being reviewed on a de novo basis (i.e., based on the entire record). Therefore, the Board now concludes that the May 1988 decision denying service connection was not limited to the question of whether a claim should be reopened, but extended to an analysis of the merits of the underlying question of service connection. The significance of the May 1988 Board denial is that, unlike RO decisions, a collateral attack on a final Board decision under the auspices of rules governing claims of clear and unmistakable error may not be made. Smith v. Brown, 35 F.3d 1516 (Fed.Cir.1994). If the issue addressed in the 1947 RO decision is treated as encompassing the question of service connection for a chronic acquired psychiatric disability, as the Board apparently did in 1988, the prior unappealed RO denial would be considered as having been, in effect, subsumed by the May 1988 Board denial on the merits and likewise immune from collateral attack under a theory of clear and unmistakable error.

A divided Court of Veterans Appeals affirmed. Donovan v. Gober, 10 Vet.App. 404 (1997). The court stated:

the 1988 BVA decision made a de novo review and essentially reviewed the 1947 RO decision. Therefore, the Court finds that the 1947 RO decision was subsumed by the 1988 BVA decision and that the BVA was correct in denying the appellant's claim for CUE as no CUE existed as a matter of law.... Even assuming that a CUE claim is not precluded by Smith [v. Brown, 35 F.3d 1516 (Fed Cir.1994) ], on the theory that the 1988 BVA decision did not limit its review to only the evidence before the RO in 1947, a determination by the Court of the existence of CUE since 1947 would of necessity mandate service connection to the present time. Such a determination would, in effect, overturn the 1988 BVA decision. The Court, however, is precluded from reviewing a BVA decision that is not the subject of this appeal. See 38 U.S.C. §§ 7252(a), 7266(a)(1).

Id. at 408-09.

Judge Steinberg, dissenting, would have reversed and remanded to the Board of Veterans' Appeals to adjudicate the claim of "clear and unmistakable error" in the 1947 regional office decision. In his view, because the Board's 1988 decision also considered new negative evidence regarding Donovan's claimed disability, that "decision thus has no bearing upon whether the RO committed CUE in 1947.... An adjudication by an RO currently of a claim of CUE in the 1947 RO decision could not and would not produce the kind of collateral attack on the 1988 BVA decision...

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