318 F.3d 1334 (Fed. Cir. 2002), 00-7171, Cook v. Principi

Docket Nº:00-7171.
Citation:318 F.3d 1334
Party Name:James R. COOK, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
Case Date:December 20, 2002
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1334

318 F.3d 1334 (Fed. Cir. 2002)

James R. COOK, Claimant-Appellant,

v.

Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 00-7171.

United States Court of Appeals, Federal Circuit

December 20, 2002

Rehearing En Banc Denied Feb. 3, 2003.

Page 1335

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, KS, argued for claimant-appellant.

Martin F. Hockey, Jr., Senior Trial Counsel, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; and David M. Cohen, Director. Of counsel on the brief were Richard D. Hipolit, Deputy Assistant General Counsel; and Martie Adelman, Staff Attorney, Department of Veterans Affairs, of Washington, DC.

Linda E. Blauhut, Paralyzed Veterans of America, of Washington, DC, for amicus curiae Garrett V. Hayre. With her on the brief was Michael P. Horan.

Before MAYER, Chief Judge, FRIEDMAN, Senior Circuit Judge, NEWMAN, MICHEL, LOURIE, CLEVENGER, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge SCHALL, in which Senior Circuit Judge FRIEDMAN and Circuit Judges MICHEL, LOURIE, CLEVENGER, RADER, BRYSON, LINN, DYK, and PROST join.

Concurring opinion filed by Circuit Judge DYK, in which Circuit Judge LINN joins.

Dissenting opinion filed by Circuit Judge GAJARSA, in which Chief Judge MAYER and Circuit Judge PAULINE NEWMAN join.

SCHALL, Circuit Judge.

James R. Cook appeals the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") in Cook v. West, No. 98-1801, 2000 WL 719866 (Table) (Vet.App. June 1, 2000). In its decision, the Veterans Court upheld the ruling of the Board of Veterans Appeals ("Board") that the alleged failure of the Veterans' Administration's1 Regional Office ("RO") to give Mr. Cook a proper medical examination before denying his 1952 claim for service-connected benefits did not constitute clear and unmistakable

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error ("CUE") under 38 U.S.C. § 5109A. See id. at *2-*5. The Veterans Court also rejected Mr. Cook's argument that, under Hayre v. West, 188 F.3d 1327 (Fed.Cir. 1999), the RO's alleged failure to give him a proper medical examination rendered the RO's denial of service connection non-final. Cook, 2000 WL 719866, at *5. Subsequently, a split panel of this court affirmed the decision of the Veterans Court. Cook v. Principi, 258 F.3d 1311 (Fed.Cir. 2001), vacated, 275 F.3d 1365 (Fed.Cir. 2002). The panel (Mayer, C.J., Friedman, S.J., Rader, J.) held that the Veterans Court did not err in ruling that the RO's alleged violation of the duty to assist could not serve as the basis for a claim of CUE. At the same time, the panel held that the Hayre exception to the rule of finality did not apply in Mr. Cook's case. Chief Judge Mayer dissented on the latter point, stating that "a breach of the duty to assist the veteran by failing to provide a proper medical examination vitiates the prior decision of the Regional Office for the purpose of direct appeal." Cook, 258 F.3d at 1316 (Mayer, C.J., dissenting).

Mr. Cook petitioned for rehearing en banc. In so doing, he argued that, under a proper application of Hayre, a showing that the VA violated any statutory or regulatory duty towards a veteran vitiates the finality of a decision regarding the veteran's entitlement to benefits. On January 4, 2002, we granted Mr. Cook's petition for rehearing en banc and vacated the panel opinion. Cook, 275 F.3d at 1366. For purposes of the en banc proceedings, we asked the parties to brief the following two questions:

1. Whether this court's decision in Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), should be overruled insofar as that case holds that the existence of "grave procedural error" renders a decision of the Veterans' Administration non-final?

2. Whether, if Hayre is overruled in this respect, a failure of the Secretary to assist the veteran under the law and regulations applicable at the time (affirmatively demonstrated by the record before the adjudicator in the particular case) can constitute clear and unmistakable error ("CUE") under 38 U.S.C. § 5109A? See Roberson v. Principi, 251 F.3d 1378 (Fed.Cir. 2001).

We answer the en banc questions as follows: First, to the extent that it created an additional exception to the rule of finality applicable to RO decisions, Hayre is overruled. Second, a failure of the Secretary to assist a veteran under applicable law and regulations cannot constitute CUE. In Parts I and II of this opinion, respectively, we address the first and second en banc questions. In Part III, we consider Mr. Cook's appeal in light of our answers to the en banc questions. Doing so, we affirm the decision of the Veterans Court.

DISCUSSION

I.

A. First En Banc Question

Whether this court's decision in Hayre v. West, 188 F.3d 1327 (Fed.Cir. 1999), should be overruled insofar as that case holds that the existence of "grave procedural error" renders a decision of the Veterans' Administration non-final?

B. The Rule of Finality

If a veteran fails to appeal from an RO decision concerning a claim, the decision becomes "final," and "the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title." 38 U.S.C. § 7105(c) (2000). Principles of finality and res judicata apply to agency decisions that have not been appealed and have become final. See Astoria Fed. Savs.

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& Loan Ass'n v. Solimino, 501 U.S. 104, 107-08, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (allowing the application of res judicata to administrative agency determinations that have attained finality); Routen v. West, 142 F.3d 1434, 1437 (Fed.Cir. 1998) (applying finality and res judicata to VA decisions). As we observed in Routen, "[u]nless otherwise provided by law, the cases are closed and the matter is thus ended." Routen, 142 F.3d at 1438.

There are, however, two statutory exceptions to the rule of finality. First, pursuant to 38 U.S.C. § 5108, the Secretary must reopen a claim "[i]f new and material evidence [regarding the claim] is presented or secured." Second, a decision "is subject to revision on the grounds of clear and unmistakable error." 38 U.S.C. §§ 5109A (decision by the Secretary) & 7111 (decision by the Board). These are the only statutory exceptions to the finality of VA decisions.2

C. Hayre v. West

In Hayre, the veteran filed a claim in 1972 for service connection for a "nerve problem." 188 F.3d at 1329. Hayre stated on his claim form that he had been treated while in service for "nerves" and that he had "talked to [a] psychiatrist," and he requested that the RO obtain his service medical records ("SMRs"). Id. The RO sent a request for the SMRs to the National Personnel Records Center but did not receive them. Id. The RO made no further attempts to obtain the records and rejected Hayre's claim without notifying him that his SMRs had not been obtained. The RO told Hayre in its denial notice that "we don't find in your medical records or elsewhere any evidence of a nervous condition." Id.

In 1992, Hayre again applied for service-connected disability. Following a VA examination, he was awarded service connection and a disability rating for post-traumatic stress disorder. In 1993, seeking an earlier effective date for the award of service connection, Hayre brought a claim challenging the RO's 1972 decision as "clearly erroneous." Hayre argued that the RO had not obtained the psychiatric SMRs that he had requested and had failed to afford him a VA examination. Id. The RO denied the claim, and the Board and the Veterans Court affirmed, treating the claim as a CUE claim.3 Hayre appealed to us.

On appeal, we reversed and remanded. We first held that an RO's single unsuccessful request for pertinent SMRs that are specifically sought by a claimant does not fulfill the RO's duty to assist the veteran in developing facts pertinent to his claim.4 Id. at 1331-32. However, relying

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on Bustos v. West, 179 F.3d 1378, 1381 (Fed.Cir. 1999), we held that such a breach of the duty to assist cannot amount to CUE. Hayre, 188 F.3d at 1333.

We next held that the RO's 1972 decision was not final for purposes of appeal. In so doing, we created a third exception to the rule of finality in addition to the two statutory exceptions created by Congress. Specifically, we held that "where there is a breach of the duty to assist in which the VA failed to obtain pertinent SMRs specifically requested by the claimant and failed to provide the claimant notice explaining the deficiency, the claim does not become final for purposes of appeal." Id. at 1334. In reaching this holding, we stated that "[i]n cases of grave procedural error, . . . the [Veterans Court] has consistently held that RO or Board decisions are not final for purposes of direct appeal." Id. at 1333 (citing Tablazon v. Brown, 8 Vet.App. 359, 361 (1995); Hauck v. Brown, 6 Vet.App. 518, 519 (1994); Kuo v. Derwinski, 2 Vet. App. 662, 666 (1992); Ashley v. Derwinski 2 Vet.App. 307, 311 (1992)). We explained that "[a] breach of the duty to assist in which the VA failed to obtain pertinent SMRs specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency is a procedural error of, at least, comparable gravity [to the errors in the four cited Veterans Court cases] that vitiates the finality of an RO decision for purposes of direct appeal." Id. We elaborated on the importance of providing adequate notice to the veteran:

Notice to the claimant explaining the failure to obtain pertinent and specifically requested SMRs is . . . essential to insuring that the agency of original jurisdiction ("AOJ") will adequately develop a veteran's claim before deciding it on the merits....

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