Szemraj v. Principi

• Decision Date: 05 February 2004
• Docket Number: No. 03-7047.,03-7047.
• Citation: 357 F.3d 1370
• Parties: James E. SZEMRAJ, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1370

357 F.3d 1370

James E. SZEMRAJ, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 03-7047.

United States Court of Appeals, Federal Circuit.

February 5, 2004.

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

Michael S. Dufault, Trial Attorney, Commercial Litigation Branch, Civil Division United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; and Deborah A. Bynum, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel; and Jamie L. Mueller, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before LOURIE, DYK and PROST, Circuit Judges.

DYK, Circuit Judge.

Appellant James E. Szemraj ("Szemraj") appeals from the decision of the Court of Appeals for Veterans Claims affirming a decision by the Board of Veterans' Appeals ("BVA") that there was no clear and unmistakable error ("CUE") in an earlier BVA decision denying service connection for a psychiatric disorder. Mr. Szemraj argues that the Court of Appeals for Veterans Claims erred by holding that the Department of Veterans Affairs' ("VA") duty to fully and sympathetically develop a claim under our decision in Roberson v. Principi, 251 F.3d 1378 (Fed.Cir. 2001), does not apply to CUE claims. We agree that the Court of Appeals for Veterans Claims misconstrued Roberson, but conclude that the error was harmless. Accordingly, we affirm.

BACKGROUND

Mr. Szemraj served in the United States Navy from April 30, 1981, to April 29, 1985. In November of 1985 Mr. Szemraj was diagnosed with depression by an examiner at a VA medical facility. From December 7, 1985, through January 17, 1986, Mr. Szemraj was hospitalized at a VA medical center where he was treated for obsessive-compulsive disorder and mixed personality disorder. Mr. Szemraj was again hospitalized and diagnosed as suffering from these disorders and atypical depression in March and April of 1987. In August of 1987 a psychology student intern noted that Mr. Szemraj had exhibited schizophrenic symptoms and suggested evaluation for paranoid schizophrenia.

In January 1988 Mr. Szemraj filed a claim for disability compensation for a "nervous condition — obsessive compulsive disorder." (J.A. at 59.) The VA regional office ("RO") denied this claim on April 19, 1988, and found no service connection because "obsessive-compulsive disorder ... is considered to be a constitutional or developmental abnormality," rather than a condition resulting from military service. (J.A. at 62.) Subsequently, Mr. Szemraj filed a notice of disagreement requesting further evaluation by "a Board of three (3) certified psychiatrists to determine a one-time diagnosis." (J.A. at 64.) The RO responded by issuing a statement of the case ("SOC") dated August 26, 1988. In the SOC the RO responded by acknowledging that 38 C.F.R. § 3.303 provides for a presumption of service connection for psychosis diagnosed within one year of leaving the service. However, the RO explained that its decision was proper because there was "no evidence of any psychosis diagnosed within the presumptive period following service discharge," and Mr. Szemraj's symptoms were consistent with a preexisting nervous condition (not a psychosis) that was not aggravated by service. (J.A. at 70.)

On August 24, 1989, after holding an evidentiary hearing, the BVA denied Mr. Szemraj's claim. In re Szemraj, No. 88-53 781 (Bd.Vet.App. Aug. 24, 1989) (the "1989 decision"). The BVA stated that Mr. Szemraj's allegations "pertain[ed] essentially to inservice aggravation of a preexisting disorder and to continuity of a chronic disorder with onset during active duty." (J.A. at 76.) The BVA, however found no evidence of symptoms or a diagnosis of any psychotic disorder during Mr. Szemraj's service period and noted that the veteran's acquired neurosis did not develop until several months after leaving the service. Specifically, the BVA found that:

[t]he objective evidence clearly reveals that the onset of the veteran's acquired neurosis was several months following service separation. No useful purpose would be served by an examination by a board of three psychiatrists. The available evidence is ample and consistently confirms diagnoses including an obsessive-compulsive disorder and atypical depression. No complaints, findings, or diagnoses pertaining to a psychotic disorder have been reported. Mere comment by a student psychology intern during August 1987 that, in his opinion, the veteran demonstrated characteristics of paranoid schizophrenia, is insufficient upon which to remand the case for additional verification of existing diagnoses.

(J.A. at 76-77.)

Approximately ten years later in a letter dated April 12, 1999, Mr. Szemraj requested that the BVA review its August 1989 decision for CUE. Among other things, Mr. Szemraj argued that the BVA in 1989 failed to apply the one-year post-service presumption of service connection provided by 38 C.F.R. §§ 3.307 and 3.309. On April 14, 2000, the BVA rejected Mr. Szemraj's CUE claim. In re Szemraj, No. 98-00 439A (Bd.Vet.App. Apr. 14, 2000) (the "2000 decision"). The BVA noted that this presumption applied only to psychoses and that while the record contained evidence of acquired neuroses (i.e., depression and obsessive compulsive disorder), "nothing in [the] record suggested the existence of a psychosis within the first post-service year." (J.A. at 45.) The BVA also rejected Mr. Szemraj's argument that its failure to remand to the RO for further examination by three psychiatrists constituted CUE because "any such failure in the duty to assist does not constitute CUE." (J.A. at 46.)

Mr. Szemraj appealed the denial of his CUE claim to the Court of Appeals for Veterans Claims, which affirmed the BVA's decision on October 30, 2002. Szemraj v. Principi, No. 00-1349 (Vet. App. Oct. 30, 2002) (the "2002 decision"). On appeal to that court, Mr. Szemraj argued that the case should be remanded in light of our decision in Roberson, which held that the VA must "fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits." 251 F.3d at 1384 (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed.Cir.1998)). Mr. Szemraj urged that Roberson required the Court of Appeals for Veterans Claims to instruct the BVA "to determine whether the [BVA] in August of 1989 correctly applied 38 C.F.R. §§ 3.307 and 3.309 as well as 38 C.F.R. §§ 3.303 and 3.304(b)." (J.A. at 22-23.) The Court of Appeals for Veterans Claims distinguished Roberson, holding that it applies only when the VA has failed to consider "a pending non-CUE claim." 2002 decision, slip op. at 6. Judgment was entered on November 21, 2002, and Mr. Szemraj timely filed an appeal. We have jurisdiction pursuant to 38 U.S.C. § 7292.

DISCUSSION

The appellant argues that the Court of Appeals for Veterans Claims misconstrued our decision in Roberson, and that Roberson applies to CUE claims. We review the appellant's claim of legal error in the decision of the Court of Appeals for Veterans Claims without deference. Meeks v. West, 216 F.3d 1363, 1366 (Fed.Cir.2000).

I

In Roberson, we held that a veteran's claim for the highest disability rating possible in a claim for service-connected compensation, when combined with evidence of unemployability, was sufficient to raise an informal claim for total disability based upon individual unemployability ("TDIU"). Roberson, 251 F.3d at 1384. In that case the veteran sought to obtain an earlier effective date for his TDIU award by arguing that he had raised an informal TDIU claim in an earlier application for benefits. Id. at 1381-82. Both the BVA and the Court of Appeals for Veterans Claims rejected the veteran's claim, holding that he had failed to allege TDIU in the earlier application. Id. at 1382. We disagreed and held that while an "informal claim must identify the benefit sought," 37 C.F.R. § 3.155(a) (2003), the DVA has a duty to "`fully and sympathetically develop the veteran's claim to its optimum'" in order to determine if an informal claim had been raised. Roberson, 251 F.3d at 1384 (quoting Hodge, 155 F.3d at 1362). We further held that "[o]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability," the identification requirement of section 3.155(a) is met and the VA must consider the claim for TDIU, "regardless of whether the claim is specifically labeled as a claim for TDIU." Id.

But our decision in Roberson is not limited to its particular facts as the Court of Appeals for Veterans Claims appears to have suggested here. Roberson requires, with respect to all pro se pleadings, that the VA give a sympathetic reading to the veteran's filings by "determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations." Roberson, 251 F.3d at 1384; see also Forshey v. Principi, 284 F.3d 1335, 1357 (Fed.Cir.2002) (en banc) ("[W]here a party appeared pro se before the lower court, a court of appeals may appropriately be less stringent in requiring that the issue have been raised explicitly."). Thus, when determining if CUE exists in an earlier decision, the VA must give a sympathetic reading to the veteran's filings in that earlier proceeding to determine the scope of the claims. See Roberson, 251 F.3d at 1384.

In Cook v. Principi, 318 F.3d 1334 (Fed. Cir.2002) (en banc), we reaffirmed our decision in Roberson in this respect, holding that developing a claim "to its optimum" under Roberson and Hodge requires the VA to "`determine all potential claims raised by the evidence,'" regardless of the specific labels those claims are given in the veteran's pleadings. Id. at 1347 (quoting Roberson, 251 F.3d...