Andrews v. Nicholson

• Decision Date: 17 August 2005
• Docket Number: No. 04-7155.,04-7155.
• Citation: 421 F.3d 1278
• Parties: Edward R. ANDREWS, Jr., Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

421 F.3d 1278

Edward R. ANDREWS, Jr., Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

No. 04-7155.

United States Court of Appeals, Federal Circuit.

August 17, 2005.

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

John H. Williamson, 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 Robert E. Kirschman, Jr., Assistant Director.

Before RADER, GAJARSA, and DYK, Circuit Judges.

DYK, Circuit Judge.

Edward R. Andrews Jr. ("Andrews") appeals from the decision of the Court of Appeals for Veterans Claims ("Veterans Court"), affirming the decision of the Board of Veterans' Appeals ("Board"). The Board denied Andrews' claims of clear and unmistakable error ("CUE") in earlier decisions of the Department of Veterans Affairs ("VA"). We affirm.

BACKGROUND

Andrews served in active duty in the United States Army from 1966 to 1969. In 1981 he filed a pro se claim for disability benefits, claiming that he suffered from, inter alia, chronic anxiety, prolonged depression, and inability to hold a job. Because Andrews failed to report to a scheduled examination, the regional office ("RO") denied the 1981 claim.

In 1983 Andrews, again acting pro se, sought to reopen his 1981 claim for disability benefits. Additional medical evidence was submitted to the RO, including a report diagnosing Andrews with chronic post-traumatic stress syndrome ("PTSD"), and noting that Andrews was "unemployed if not unemployable." J.A. at 82. The RO granted the disability claim and assigned a 10% disability rating for PTSD. The RO did not treat Andrews as raising a claim for total disability based on individual unemployability ("TDIU"),¹ and did not discuss the evidence of unemployability.

In 1984 Andrews submitted a pro se claim for an increased rating. The examiner noted that Andrews had held 30-40 jobs since returning from Vietnam, had not worked at all in the four years prior to the examination, and could not get along with people. The examiner diagnosed Andrews with severe and chronic PTSD. In light of the examination report, the RO increased Andrews' disability rating to 30% in January 1985. The RO again did not treat Andrews as raising a TDIU claim.

In 1995, this time through counsel, Andrews filed a claim with the VA for revision of the 1983 and 1985 RO decisions based on clear and unmistakable error. Before the Board on the CUE motion, Andrews argued exclusively that the 10% and 30% ratings were incorrect because the RO had misapplied the disability schedule at 38 C.F.R. § 4.132 (1985). He urged that it was "not possible to assign a 10% rating when the medical evidence describes such chronic symptoms," and it was also "not possible to assign a moderate [30%] rating when the diagnosis of the service-connected condition is described as severe and chronic." J.A. at 74-75. At no time did Andrews argue that the RO in 1983 or 1985 had erred in failing to consider Andrews as having raised a TDIU claim. The Board denied the CUE claim, finding that the RO had made no legal error, and that Andrews' arguments were no more than an assertion that the RO should have weighed the evidence differently. J.A. at 72.

Andrews then appealed to the Veterans Court. Andrews argued that CUE claims present legal issues that should be reviewed de novo by the Veterans Court in their entirety. On the merits, Andrews argued for the first time that the VA failed to consider evidence of unemployability in 1983 and 1985, and such failure was clear and unmistakable error. J.A. at 58. However, Andrews continued to urge only that the evidence of unemployability should have led to a higher disability rating for PTSD. Id. He did not argue that the RO erred in failing to treat his filings as raising a TDIU claim.

The Veterans Court dismissed the appeal in an unpublished one-page order, stating only that "the appellant has failed to allege any errors in the Board's decision and thus abandons the only issues addressed by the Board." Andrews v. West, No. 98-1849, 2000 WL 195560, 17 Vet.App. 337 (Vet.App. Jan. 24, 2000) ("Andrews I"). On appeal to this court, we held in a non-precedential opinion that Andrews' argument that the Board failed to consider all the evidence was an allegation of error in the Board decision, vacated the Veterans Court's order, and remanded the case for disposition on the merits. Andrews v. Principi, 25 Fed.Appx. 997, 998 (Fed.Cir.2001) ("Andrews II").

On remand, the Veterans Court initially affirmed the Board decision in an unpublished single-judge memorandum opinion. Andrews v. Principi, No. 98-1849, 2003 WL 1791207 (Vet.App. Feb. 27, 2003). In response to Andrews' motion for reconsideration and panel review, the Veterans Court withdrew the single-judge opinion and in its place issued a precedential panel opinion affirming the Board, with one judge dissenting in part. Andrews v. Principi, 18 Vet.App. 177 (2004) ("Andrews III"). The Veterans Court noted that it reviewed decisions of the Board to determine whether the Board decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. at 181 (internal quotation omitted). The court then rejected Andrews' claim that the VA in 1983 and 1985 failed to consider all the evidence because the RO is not always required to discuss the evidence it considers; and mere silence is not sufficient to establish a CUE claim based on a failure to consider evidence of record. Id. at 184. The court then held that, in any event, any error in failing to consider evidence would not have been outcome determinative and thus Andrews failed to establish CUE. Id.

Finally, the Veterans Court considered the effect of this court's intervening decision in Roberson v. Principi, 251 F.3d 1378 (Fed.Cir.2001), where we 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 VA must consider TDIU." Id. at 1384. The Veterans Court held that: (1) Roberson applies only to pleadings in the underlying claim (i.e. the 1983 and 1985 claims for benefits), and does not apply to the CUE motion itself; (2) if Roberson applied to CUE motions at all, it did not change the requirement that CUE claims be pled with specificity, and in the CUE motion Andrews failed to allege an error in the 1983 and 1985 decision with specificity; and (3) if Roberson applied to CUE motions and modified the requirement that CUE claims be pled with specificity, Andrews did not properly argue that the Board failed to read his CUE motion sympathetically under Roberson. Andrews III, 18 Vet.App. at 185-86. The Veterans Court therefore affirmed the decision of the Board finding no CUE in the 1983 and 1985 decisions. Andrews appeals. We have jurisdiction pursuant to 38 U.S.C. § 7292.

DISCUSSION

Under 38 U.S.C. § 7292, as amended in 2002, we have jurisdiction to review decisions of the Court of Appeals for Veterans Claims on all issues of law where "the decision below regarding a governing rule of law would have been altered by adopting the position being urged." Morgan v. Principi, 327 F.3d 1357, 1363 (Fed.Cir.2003); see 38 U.S.C. § 7292 (2000 & Supp. II 2002); Wagner v. Principi, 370 F.3d 1089, 1091 (Fed.Cir.2004). We have jurisdiction "to determine whether the legal requirement of the statute or regulation has been correctly interpreted in a particular context where the relevant facts are not in dispute." Szemraj v. Principi, 357 F.3d 1370, 1375 (Fed.Cir.2004). However, except with respect to constitutional issues, we do not have jurisdiction to "review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." 38 U.S.C. § 7292(d) (2000).² We review issues of law without deference. Wagner, 370 F.3d at 1092.

I

The government challenges the jurisdiction of this court to consider legal error in the adjudication of Andrews' claim. Apparently relying on the finality requirement discussed in Mayer v. Brown, 37 F.3d 618, 619-20 (Fed.Cir.1994), the government argues that, even if the VA had erred in failing to construe the veteran's pleadings to raise a TDIU claim in the 1983 and 1985 proceedings, such an error should not be considered on a CUE motion. Rather, the government urges that the TDIU claim is still pending before the RO awaiting adjudication, and that the Veterans Court and this court are without jurisdiction because there is no Board decision for us to review.³ We disagree; the government's position is contradicted by our decision in Roberson.

In Roberson, the veteran filed an original claim in 1982. The application for benefits did not specify a TDIU claim, but did note that the veteran had not worked for a year. A RO decision was rendered in 1984, without discussing TDIU. The veteran then filed a CUE motion in 1995, arguing that the 1984 RO decision was clearly and unmistakably erroneous because it failed to consider a TDIU claim. On appeal from the CUE motion, we held that "Roberson's claim has been finally decided by the RO" and the Board, and that the claim was ripe for review. Roberson, 251 F.3d at 1384. Thus, we clearly held in Roberson that the VA's failure to consider a TDIU claim in this manner is properly challenged through a CUE motion. Because the Board has ruled on the CUE motion, the Veterans Court properly had jurisdiction to review its decision, and we have jurisdiction to review the Veterans Court's decision.

II

On the merits, Andrews submits that the Veterans Court somehow applied the wrong standard of review for Board decisions. Before the Veterans Court he argued that Board decisions on CUE are required to be...