Brown v. West Jr.

• Decision Date: 18 February 2000
• Citation: 203 F.3d 1378
• Parties: (Fed. Cir. 2000) ALFRED L. BROWN, Claimant-Appellant, v. TOGO D. WEST, JR., Secretary of Veterans Affairs, Respondent-Appellee. 98-7071 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1378

203 F.3d 1378 (Fed. Cir. 2000)

ALFRED L. BROWN, Claimant-Appellant, v. TOGO D. WEST, JR., Secretary of Veterans Affairs, Respondent-Appellee.

United States Court of Appeals for the Federal Circuit

98-7071

DECIDED: February 18, 2000

Appealed from: United States Court of Appeals for Veterans Claims Judge Kenneth B. Kramer

Gary L. Beaver, Adams Kleemeier Hagan Hannah & Fouts, PLLC, of Greensboro North Carolina, argued for claimant-appellant.

Scott D. Austin, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were David W. Ogden, Acting Assistant Attorney General, David M. Cohen, Director, and Kirk T. Manhardt, Assistant Director.

Before MAYER, Chief Judge, PLAGER, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

Appellant Alfred L. Brown contends that a 1947 disability rating decision by the Veterans Administration constituted clear and unmistakable error. The Court of Appeals for Veterans Claims denied his claim, holding that intervening decisions by the Board of Veterans' Appeals barred him from challenging the 1947 rating decision. We vacate the judgment of the Court of Appeals for Veterans Claims and remand the case to that court for further proceedings.

I

Mr. Brown served on active duty in the United States Army from May 1944 to July 1945. In March 1945, he suffered severe shell-fragment wounds, and in July 1945 a Veterans Administration regional office (RO) awarded him a temporary 100% service-connected disability rating for his injuries. In February 1947, the RO issued a permanent rating decision, assigning him a combined disability rating of 70%.

In April 1981, Mr. Brown requested that his combined disability rating be increased to 100% after he discovered that in 1947 the Veterans Administration had failed to establish service connection for residuals of injuries to his right kidney, his right adrenal gland, and an abdominal muscle group known as muscle group XIX (MG19). Following a series of rulings in 1981 and 1982, the RO determined that all three injuries were service-related, but it assigned a noncompensable rating to his kidney and adrenal gland injuries, and it assigned only a 10% disability rating to his MG19 injury. The new ratings, which were made effective as of September 1980 (for the kidney and adrenal gland injuries) and May 1981 (for the MG19 injury), did not change Mr. Brown's combined disability rating of 70%. In a 1984 decision, the Board of Veterans' Appeals upheld the RO's ratings.

In April 1985, Mr. Brown made another claim for an increased disability rating. He argued that the award of service connection for his kidney, adrenal gland, and MG19 injuries should have been made effective as of the date of his discharge in July 1945, because those injuries were evident from the medical records that were before the RO at that time. In May 1985, the RO made the ratings effective as of July 1946. The RO's grant of service connection retroactive to 1946 did not, however, affect Mr. Brown's overall 70% disability rating or the amount of his monetary benefits. Mr. Brown did not appeal that decision.

In April 1990, Mr. Brown submitted another claim for increased disability compensation based in part on the kidney, adrenal gland, and MG19 injuries. After the RO rejected his claim, he appealed to the Board of Veterans' Appeals. Mr. Brown argued that he was entitled to (1) service connection for residuals of hepatitis and for hypertension, (2) increased ratings for residuals of his kidney and adrenal gland injuries, and (3) a total disability rating based on his unemployability. In addition, he argued that if the Veterans Administration had properly evaluated his injuries in 1947 under the then-current 1945 diagnostic schedule, he would have been given a higher rating.

In September 1991, the Board denied the appeal. It determined that (1) service connection had not been shown for hepatitis and hypertension, (2) no residuals reasonably related to Mr. Brown's kidney and adrenal gland injuries had been demonstrated, and (3) the record did not support Mr. Brown's claim that his injuries rendered him unemployable. The Board noted Mr. Brown's contentions that the 1945 rating action improperly failed to include all his service-related disabilities, and that in 1981 the RO had assigned the wrong effective date for the disabilities that were held service connected at that time. The Board observed, however, that "[n]either of those issues has been developed for appellate consideration. Accordingly, they are not properly before the Board at this time, and are, therefore, referred to the originating agency for appropriate consideration."

Following that referral, the RO in November 1991 denied Mr. Brown's claim that he should have had a 100% disability rating as of 1945. Mr. Brown once again appealed to the Board. The Board denied his claim in April 1993, finding that, although the 1947 decision was in error by failing to acknowledge Mr. Brown's kidney, adrenal gland, and MG19 injuries, that decision did not constitute clear and unmistakable error because there was no evidence that could have supported a higher rating for those conditions than the 70% rating he had received as of 1946. On reconsideration, the Board in February 1994 accepted Mr. Brown's argument that the rating table applicable in July 1946 should be applied to his claim. Nonetheless, the Board ruled that, even if the RO had considered the kidney, adrenal gland, and MG19 injuries in the February 1947 rating action and had rated them under the then-applicable rating table, Mr. Brown would not have been awarded a combined rating greater than 70%. Mr. Brown then appealed to the Court of Appeals for Veterans Claims, but the case was remanded to the Board upon joint motion of the parties and the February 1994 Board reconsideration decision was vacated. On remand, the Board obtained an independent medical expert opinion on Mr. Brown's kidney and adrenal gland injuries. In a February 1996 decision, the Board again found that the 1947 rating decision did not contain clear and unmistakable error, concluding that the evidence at the time of the 1947 RO determination failed to show any basis for increasing his rating for the three injuries under the 1945 rating schedule, which was applicable in February 1947.

Mr. Brown again appealed to the Court of Appeals for Veterans Claims, arguing that the Board had misapplied the 1945 schedule and therefore erred in concluding that the RO had not committed clear and unmistakable error in 1947. The court stated that it "believe[s] that the appellant makes a number of persuasive arguments that the 1947 RO decision (as modified by the 1985 RO decision) rated the appellant's disabilities improperly." Nonetheless, the court did not reach the merits of that claim. Instead, the court concluded that any rating error in the 1947 RO rating decision could not be the basis for a finding of clear and unmistakable error, because that decision was subsumed by the 1984 and 1991 Board decisions and could not be collaterally attacked in a further proceeding before the RO. Accordingly, the court denied relief and affirmed the Board's decision.

II

Under the regulatory scheme governing veterans' claims, a final decision denying benefits can be revised if it is shown to be the product of clear and unmistakable...