Maggitt Jr. v. West Jr.

• Citation: 202 F.3d 1370
• Parties: (Fed. Cir. 2000) ADWAY MAGGITT, JR., Claimant-Appellant, v. TOGO D. WEST, JR., Secretary of Veterans Affairs, Respondent-Appellee. 99-7023 DECIDED:
• Decision Date: 03 February 2000
• Court: U.S. Court of Appeals — Federal Circuit

Page 1370

202 F.3d 1370 (Fed. Cir. 2000)

ADWAY MAGGITT, JR., Claimant-Appellant, v. TOGO D. WEST, JR., Secretary of Veterans Affairs Respondent-Appellee.

99-7023

United States Court of Appeals for the Federal Circuit

DECIDED: February 3, 2000

Appealed from: United States Court of Appeals for Veterans Claims Judge Ronald M. Holdaway

[Copyrighted Material Omitted]

Michael P. Horan, Paralyzed Veterans of America, of Washington, DC, argued for claimant-appellant.

Monica Palko, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director; and Kirk T. Manhardt, Assistant Director. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel; and David J. Barrans, Staff Attorney, Department of Veterans Affairs, of Washington, DC.

Barton F. Stichman, National Veterans Legal Services Program, of Washington, DC, for amici curiae, National Veterans Legal Services Program.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas for amicus curiae, National Organization of Veterans' Advocates, Inc.

Before CLEVENGER, LOURIE, and CLEVENGER, Circuit Judges.

CLEVENGER, Circuit Judge.

Adway Maggitt, Jr., appeals from the decision of the United States Court of Appeals for Veterans Claims (Veterans Court)¹ dismissing his appeal in part for lack of jurisdiction and for failure to exhaust administrative remedies, and affirming the denial by the Board of Veterans' Appeals (Board) of his claims for service connection. Maggitt v. West, No. 97-357, slip op. at 3, 5 (Aug. 27, 1998). Because the Veterans Court erred in dismissing Maggitt's appeal of the Board's denial of his request to reopen claims for service connection for asthma, a knee condition, and a skin disorder of the foot, we vacate that decision and remand to the Veterans Court for further proceedings. Because the Veterans Court erred when it denied Maggitt's motion to recall judgment, stay issuance of mandate and remand to the Board his request to reopen a claim of service connection for asthma, a knee condition, and a skin disorder, we vacate the decision and remand that claim to the Veterans Court, with instructions to remand the claim to the Board. Finally, Maggitt argues that the Board improperly applied a causation test when evaluating his claim of service connection for a back condition. Since we conclude that the Board did not apply a causation test, we reject Maggitt's statutory challenge, as did the Veterans Court.

I

Adway Maggitt, Jr., served on active duty in the U.S. Army from September 1976 to September 1979 and from January to October 1980, when he was honorably discharged. In 1979 and 1983, Maggitt filed claims for service connection for asthma, a knee condition and a skin disorder of the foot (skin disorder), which regional offices of the Department of Veterans' Affairs (Agency) denied. Maggitt did not appeal these decisions. In 1989, Maggitt sought to reopen his claims for service connection for these three conditions and also requested service connection for a back condition. The regional office denied all four claims, and Maggitt filed a timely Notice of Disagreement (NOD) with the Board. See 38 U.S.C. § 7105(a) (1994). The Board ruled that Maggitt had submitted new but not material evidence supporting the request to reopen the claim for benefit entitlement for the knee condition. See Maggitt v. West, No. 91-45801, slip op. at 12 (Nov. 13, 1996). The Board further found that Maggitt's evidence submitted in support of the asthma and skin disorder claims was not "new." Id. at 15, 17. The Board thus did not reach the question of whether this evidence was "material." See Evans v. Brown, 9 Vet. App. 273, 282 (1996) (question whether evidence is "material" is considered only if the evidence is "new"). The Board therefore denied Maggitt's request to reopen the three claims. The Board also denied service connection for Maggitt's back condition. Id. at 28. Maggitt appealed to the Veterans Court.

Before the Veterans Court, Maggitt made two arguments that he had not previously presented to the Board. First, Maggitt argued the regional office's failure to cite applicable case law in the decision through which the Agency denied his request for benefits, as is allegedly required by 38 U.S.C. § 7105(d)(1)(B) (1994), violated his right to due process protected by the U.S. Constitution, related statutes, and regulations. Second, Maggitt asserted that he was adversely affected by the Agency's repeal in 1992 of two regulations governing administrative allowances, 38 C.F.R. §§ 19.5, 19.184 (1991), and that this repeal was invalid because there was no supplementary notice of repeal and the public was not invited to comment, as is allegedly required by the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (1994), see also 5 U.S.C. § 552(a)(1) (1994) (publication requirements), § 553 (1994) (notice and comment requirements), or similar regulations adopted pursuant to chapter 72 of title 38 of the United States Code. Maggitt also filed a Motion for Summary Remand on March 18, 1998, requesting an order remanding the case to the Board so that Maggitt could present the APA and constitutional arguments to the Board.

Maggitt further argued that the Board erred in its factual conclusions with regard to his claim for service connection for a back condition, and that the Board applied "the incorrect legal test" in evaluating the evidence.

With respect to Maggitt's APA argument, the Veterans Court summarily concluded that Maggitt had failed to exhaust his administrative remedies, by failing to present the issue to either the Regional Office or the Board. For that reason, the Veterans Court concluded that the APA issue was "not properly before the court." As for Maggitt's due process contention, the Veterans Court stated that that issue as well had not been presented earlier and consequently the Veterans Court had "no jurisdiction to review it either," Maggitt v. West, No. 97-357, slip op. at 3 (Vet. Cl. Aug. 27, 1998), and it denied Maggitt's Motion for Summary Remand because "the Court cannot remand an issue over which it has no jurisdiction." Id. The Veterans Court did not reach the merits of the two issues, and we also express no views on those merits.

The Veterans Court affirmed the Board's denial of service connection for the back injury because Maggitt had not challenged the Board's factual findings as clearly erroneous. Id. at 5. The court did not consider Maggitt's argument that the Board had applied the incorrect legal test when evaluating his back claim.

The Veterans Court issued judgment on September 18, 1998. On October 26, 1998, Maggitt filed a motion seeking a recall of the court's judgment, stay of mandate, and remand to the Board for reconsideration in light of this court's decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), on September 16, 1998. In the motion, Maggitt argued that a remand was justified because Hodge revised the so-called Colvin standard for "new and material" evidence, under which the Board had evaluated his request to reopen the asthma, knee, and skin disorder claims. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Maggitt asserted that remand was necessary so that the Board could reconsider the evidence under the new standard enunciated in Hodge. The Veterans Court denied the motion on October 30, 1998, because Maggitt "failed to show good cause or special circumstances that would justify the recall of the Court's judgment". See Maggitt v. West, No. 97-357, slip op. at 2 (Vet. Cl. Oct. 30, 1998) (order denying motion). This appeal followed.

II

Congress has limited our jurisdiction over a decision of the Veterans Court to those appeals that challenge the validity of any statute or regulation, any interpretations thereof, or that raise any constitutional controversies. See 38 U.S.C. § 7292(a) (1994). An issue otherwise within our jurisdiction must, in addition, be one upon which the Veterans Court relied in making its decision. See 38 U.S.C. § 7292(a) (1994); Linville v. West, 165 F.3d 1382 (Fed. Cir. 1999) (issue presented to Veterans Court is relied upon). Our jurisdiction also does not extend to appeals objecting either to factual determinations or to the law as applied to the facts of a particular case, unless there is a constitutional issue present. See 38 U.S.C. § 7292(d)(2) (1994). Under section 7292(d)(1)(A), we hold unlawful and set aside any regulation or any interpretation thereof (other than a determination as to a factual matter) that we find to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 38 U.S.C. § 7292(d)(1)(A) (1994). The jurisdictional reach of the Veterans Court presents a question of law for our plenary review. See Wick v. Brown, 40 F.3d 367, 370 (Fed. Cir. 1994).

A

A synopsis of the process for obtaining disability benefits will provide context for our discussion. A veteran's application for benefits has five necessary elements: status as a veteran, the existence of disability, a connection between the veteran's service and the disability, the degree of the disability, and the effective date of the disability. See Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Disagreement between the Agency and the veteran about one or more of these elements may create a dispute which is resolved by an Agency decision as to whether the veteran does or does not have legal entitlement to a particular benefit. See id.

The veteran may appeal an adverse Agency decision to the Board. Appellate review is initiated by filing an NOD, see 38 U.S.C. § 7105(d) (1994), which is a written communication from a claimant or the representative expressing dissatisfaction or disagreement with an adjudicative determination of the Agency. See 38 C.F.R. §§ 19.118 (1989),...