Spencer v. Brown, 93-7073

• Decision Date: 15 February 1994
• Docket Number: No. 93-7073,93-7073
• Parties: Donald G. SPENCER, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 368

17 F.3d 368

Donald G. SPENCER, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.

No. 93-7073.

United States Court of Appeals Federal Circuit.

Feb. 15, 1994.

Michael P. Horan, Paralyzed Veterans of America, of Washington, D.C., argued for claimant-Appellant.

John K. Lapiana, Attorney, Commercial Litigation Branch, Department of Justice, of Washington, D.C., argued for respondent-appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director and Anthony H. Anikeeff, Assistant Director. Also on the brief were Donald E. Zeglin, Deputy Assistant, General Counsel and Kerwin E. Miller, Attorney, Department of Veterans Affairs, Washington, D.C., of counsel.

Before RICH and LOURIE, Circuit Judges, and MESKILL, Senior Circuit Judge. ¹

LOURIE, Circuit Judge.

Donald G. Spencer appeals from the judgment of the United States Court of Veterans Appeals affirming the decision of the Board of Veterans' Appeals denying Spencer's claim for compensation for an alleged service-connected disability. Spencer v. Brown, 4 Vet.App. 283 (1993). Because the Board was not required to review his claim de novo and Spencer failed to present new and material evidence warranting the reopening of his claim, we affirm.

BACKGROUND

Spencer served on active military duty from March 1944 to February 1946. In 1975, he was diagnosed with multiple sclerosis (MS), a degenerative nerve disease. In November 1976, Spencer filed a claim with a regional office of the Veterans Administration ("the agency") for service-connected disability compensation for MS. ² The claim was supported by a letter from a private physician suggesting the possibility that Spencer suffered his "first attack" of MS while on active duty in the spring of 1945. In view of the lack of evidence showing that the disability was incurred in or aggravated by his service in the military, the agency determined that Spencer's disability was not service connected and denied his claim. See 38 U.S.C. Sec. 1110 (Supp. IV 1992); 38 C.F.R. Sec. 3.303 (1993).

In March 1977, Spencer submitted additional medical and lay evidence supporting his contention that his disability was service connected. The evidence related to a back condition allegedly incurred by Spencer during his period of service, which continued to cause him discomfort after his discharge. Spencer maintained that this back condition was symptomatic of MS and thus demonstrated that he suffered from MS during service or during the seven-year presumptive period subsequent to service. See 38 U.S.C. Sec. 1112(a)(4) (Supp. IV 1992) (seven-year presumptive period for MS). The agency, however, found that the record as supplemented remained inadequate to show that Spencer's MS disability was incurred or aggravated in line of duty. On May 27, 1977, the agency confirmed its decision to deny Spencer's claim for service-connected disability compensation.

Spencer appealed the agency's decision to the Board of Veterans' Appeals. ³ On May 24, 1978, the Board denied Spencer's claim on the ground that "a reasonable probability that multiple sclerosis was present during service or within seven years thereafter has not been demonstrated." The Board subsequently reconsidered and affirmed its May 1978 decision in a final decision issued on January 10, 1980.

Spencer sought to reopen his claim in 1983 based on evidence that he alleged was "new and material" within the meaning of 38 U.S.C. Sec. 5108 (Supp. IV 1992) (formerly 38 U.S.C. Sec. 3008). ⁴ The Board, however, determined that the additional evidence did not provide a new factual basis for allowing his claim, see 38 U.S.C. Sec. 7104(b) (Supp. IV 1992) (formerly 38 U.S.C. Sec. 4004(b)); 38 C.F.R. Sec. 20.1105 (1993), and denied Spencer's request on October 4, 1984. Another request to reopen his claim based on new and material evidence was denied on similar grounds on March 30, 1987.

Finally, Spencer requested that his claim be reconsidered on the basis that the Board failed to give sufficient consideration to statements of private physicians and others concerning the purported manifestations of MS during service or the presumptive period thereafter. The Board rejected that argument and again denied his claim on July 23, 1990. The Board determined that its May 1978, October 1984, and March 1987 decisions were final and that no new factual basis existed to warrant reopening of his claim.

Spencer appealed the July 1990 Board decision to the United States Court of Veterans Appeals on August 10, 1990. Spencer argued that he was entitled to de novo review of his previously and finally disallowed claim, irrespective of whether new and material evidence had been presented. Specifically, Spencer asserted that the Veterans' Judicial Review Act of 1988 (VJRA), Pub.L. No. 100-687, 102 Stat. 4105 (1988), created a new substantive right of entitlement to disability compensation and that the Board was required to review his claim de novo under 38 U.S.C. Sec. 5110(g) (Supp. IV 1992) (formerly 38 U.S.C. Sec. 3010(g)), which, according to Spencer, provides an exception to the finality provision of 38 U.S.C. Sec. 7104(b) where there has been a statutory or regulatory change in veterans' benefits law affecting a previously and finally disallowed claim. ⁵

The Court of Veterans Appeals agreed that section 5110(g) "appears to be contingent upon, and thus to presuppose, the existence" of a right to de novo adjudication of a previously and finally denied claim "where an intervening change in law or regulation has created a new basis of entitlement to a benefit." 4 Vet.App. at 288, 289. However, the court rejected Spencer's assertion that he was entitled to de novo review of his claim under the VJRA, because that legislation did not effect an intervening change in law that substantively affected Spencer's claim for service-connected disability compensation such that a new basis for entitlement was created. In affirming the Board's decision, the court also held that Spencer did not present new and material evidence justifying reopening of his previously and finally disallowed claim.

Spencer now appeals the decision of the Court of Veterans Appeals affirming the Board's denial of Spencer's claim. To the extent that Spencer challenges the Board's interpretation of governing statutes and regulations, we have jurisdiction to hear his appeal under 38 U.S.C. Sec. 7292(c) (Supp. IV 1992).

DISCUSSION

I. De Novo Review

Under the statutory scheme governing veterans' benefits claims, a claim that is finally denied by the Board "may not thereafter be reopened and allowed and a claim Additionally, as the Court of Veterans Appeals recognized, "section 7104(b) does not preclude de novo adjudication of a claim, on essentially the same facts as a previously and finally denied claim, where an intervening and substantive change in law or regulation created a new basis for entitlement to a benefit." 4 Vet.App. at 289. In reaching this conclusion, the court reasoned that

based upon the same factual basis may not be considered." 38 U.S.C. Sec. 7104(b) (Supp. IV 1992). Thus, section 7104(b) precludes consideration of a previously and finally denied claim unless a new factual basis exists upon which benefits may be awarded. An exception to the finality provision of section 7104(b) arises only when "new and material evidence is presented or secured" which establishes a new factual basis for entitlement to a claimed benefit. 38 U.S.C. Sec. 5108.

[w]hen a provision of law or regulation creates a new basis of entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit, an applicant's claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation. The applicant's later claim, asserting rights which did not exist at the time of the prior claim, is necessarily a different claim.

Id. at 288-89.

Spencer insists that the VJRA instituted a comprehensive overhaul of the statutory scheme governing adjudication of claims for veterans' benefits and that the resulting change substantively affected the basis for establishing entitlement to his claimed benefits. Thus, in view of the "radical" changes in veterans' benefits law brought about by the enactment of the VJRA, Spencer argues that the Court of Veterans Appeals erred in failing to recognize his right to de novo review of his claim.

Whether the VJRA represented a "liberalizing" law, i.e., one which brought about a substantive change in the law creating a new and different entitlement to a benefit, is an issue of statutory interpretation subject to our de novo review. See Travelstead v. Derwinski, 978 F.2d 1244, 1250 (Fed.Cir.1992) (citing 38 U.S.C. Sec. 7292 (Supp. IV 1992)). The ultimate objective when interpreting a statute is to give effect to the intent of Congress. See Gade v. National Solid Wastes Management Assn., --- U.S. ----, ---- - ----, 112 S.Ct. 2374, 2381-82, 120 L.Ed.2d 73 (1992). Our duty is "to find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested." National Labor Review Bd. v. Lion Oil Co., 352 U.S. 282, 297, 77 S.Ct. 330, 338, 1 L.Ed.2d 331 (1957). In discharging that duty, we look not only to the relevant statutory language, but to the design of the statute as a whole and to its object and policy. See Crandon v. United States, 494 U.S. 152, 157, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990).

It is clear that the VJRA instituted changes in the veterans' benefits system and expanded the rights of veterans relating to the adjudication of their claims, including the right to seek judicial review, the right to have reasonable doubt resolved in favor of the claimant, and the right to an agency decision...