Adams v. Shinseki

• Decision Date: 15 June 2009
• Docket Number: No. 2008-7162.,2008-7162.
• Citation: 568 F.3d 956
• Parties: Lee P. ADAMS, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

568 F.3d 956

Lee P. ADAMS, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2008-7162.

United States Court of Appeals, Federal Circuit.

June 15, 2009.

Marshall O. Potter, Jr., of Vienna, VA, argued for claimant-appellant.

Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, SCHALL, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

When a veteran files a claim for disability compensation, that claim is regarded as pending until it is acted upon by the Department of Veterans Affairs ("DVA"). In some instances in which a veteran files several claims, or in which the veteran's claim is treated as constituting several separate claims, the DVA does not expressly act upon each of the claims. In that setting, it is necessary to decide whether the unaddressed claim is still pending or has been implicitly denied. The answer to that question is important because it can affect the effective date of the veteran's claim and the standard to be applied if the veteran seeks, at some later time, to reassert the claim that was not expressly resolved.

In this case, the Court of Appeals for Veterans Claims ("the Veterans Court") held that a claim filed by the veteran, Lee P. Adams, was implicitly denied by a Veterans Administration regional office in 1951 and by the Board of Veterans' Appeals in 1952. The court rejected Mr. Adams's contention that the claim was never denied and therefore was still pending when Mr. Adams sought to reopen it in 1989. Mr. Adams now argues that the Veterans Court applied an incorrect legal standard in deciding that the Veterans Administration implicitly denied his claim in 1951 and 1952. We hold that the Veterans Court applied the correct standard, and we therefore affirm.

I

Mr. Adams served on active duty in the U.S. Air Force for approximately one month, from January 15, 1951, to February 16, 1951. A medical examination conducted when he entered the service did not disclose any heart abnormalities. Eleven days later, however, Mr. Adams was admitted to an Air Force hospital for evaluation of a heart murmur that was detected during a physical examination performed upon his arrival at an Air Force base in San Antonio, Texas. Mr. Adams was hospitalized for about two weeks and diagnosed with inactive rheumatic valvulitis with deformity in the aortic valve. He was also suffering from a respiratory infection at the time.

After Mr. Adams was released from the hospital, a military medical board determined that he had rheumatic heart disease that preexisted and was not aggravated by service. As a result of his heart condition, Mr. Adams was honorably discharged from the Air Force.

On April 23, 1951, Mr. Adams filed an application with the Veterans Administration seeking disability compensation for what he termed "rheumatic heart." In support of that claim, Mr. Adams submitted a medical report prepared by a private physician whom Mr. Adams consulted when he became ill again shortly after his discharge. The physician diagnosed Mr. Adams with "rheumatic valvular heart disease, aortic insufficiency, and mitral insufficiency," as well as a fresh respiratory infection. In a June 1951 decision, a Veterans Administration regional office denied Mr. Adams's claim for benefits on the ground that he had no active symptoms of "rheumatic valvulitis or associated disease" during his service.

Mr. Adams continued to complain of severe chills and fever, and on his physician's recommendation he was hospitalized in a Veterans Administration facility from May to August 1951. A hospital report dated August 1951 listed two diagnoses: (1) "Rheumatic heart disease, active, aortic insufficiency, cardiac enlargement, myocardial disease, myocardial insufficiency," and (2) "Subacute bacterial endocarditis, due to streptococcus mitis, secondary to [his rheumatic heart disease]." The regional office reviewed the hospital report but concluded that it did not contain any new and material evidence as to the issue of service connection for Mr. Adams's heart condition. The regional office therefore again denied his claim for disability compensation.

On October 11, 1951, Mr. Adams submitted an affidavit to the regional office in which he referred to the hospital report and the diagnoses of rheumatic heart disease and subacute bacterial endocarditis listed in the report. The regional office reconsidered his claim for disability compensation based on the affidavit but again determined that no change in the previous disallowance decision was warranted.

Mr. Adams appealed from the regional office's decisions, contending that he was entitled to service connection for a "heart condition." The Board of Veterans' Appeals denied the appeal on March 4, 1952. The Board noted that it had considered the entire record, including the August 1951 hospital report and the October 1951 affidavit. The Board concluded that the "medical records do not disclose active rheumatic fever or other active cardiac pathology during service" and that Mr. Adams's "rheumatic valvulitis" was incurred prior to and not aggravated during his military service.

Nearly 40 years later, on February 2, 1989, Mr. Adams submitted a request to reopen his claim for disability compensation based on additional medical evidence. The Board conducted a hearing and determined that the issue for consideration was more appropriately characterized as a claim for "entitlement to service connection for endocarditis residuals." After further proceedings before the regional office, the Board on February 7, 1997, awarded Mr. Adams service connection for "heart disease, claimed as residuals of endocarditis, including heart valve damage." Specifically, the Board found that Mr. Adams had congenital heart disease with a bicuspid aortic valve when he entered the service. That preexisting condition predisposed him to bacterial endocarditis, which the Board found he incurred while in the service and which resulted in additional heart valve damage. The regional office ultimately assigned an effective date for the grant of service connection of January 19, 1989, the date on which Mr. Adams was admitted to a veterans hospital for treatment of a heart condition. See 38 C.F.R. § 3.157(b)(1).

Dissatisfied with the effective date that was assigned to his award of benefits, Mr. Adams asked the Board to assign him an earlier effective date. The linchpin of Mr. Adams's argument was that his 1951 claim for endocarditis remained pending until the Board's 1997 decision that awarded him service connection for heart disease; for that reason, Mr. Adams contended, he was entitled to an effective date of February 17, 1951, the day after his separation from service. See 38 U.S.C. § 5110(a), (b)(1). The Board rejected that argument, concluding that there was no pending claim for service connection for heart disease after the Board's 1952 decision.

Mr. Adams took an appeal to the Veterans Court, which accepted Mr. Adams's argument that he had filed two distinct claims for service connection in 1951: a formal claim for rheumatic heart disease and an informal claim for endocarditis. Nonetheless, the court concluded that the regional office's 1951 decision regarding Mr. Adams's formal claim for rheumatic heart condition had implicitly denied Mr. Adams's informal claim for service connection for endocarditis. The court therefore affirmed the Board's denial of an effective date earlier than January 19, 1989, on the ground that Mr. Adams had no pending claim for service connection prior to that date. Mr. Adams appeals.

II

The rules for determining the effective date of a veteran's claim for benefits are not in dispute. Generally, the effective date for an original claim is the date that the DVA receives the claim or the date that the entitlement to the benefit arose, whichever is later. 38 U.S.C. § 5110(a). If a veteran files a claim within one year after separation from service, the effective date of the claim is the day after the veteran's discharge. Id. § 5110(b)(1). For an award based on a claim reopened after final adjudication, however, the effective date is typically the date that the DVA receives the request to reopen the claim (as opposed to the date of receipt of the original claim) or the date that the entitlement to benefits arose, whichever is later. Id. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r); see generally Livesay v. Principi, 15 Vet. App. 165, 171-72 (2001).

A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated. 38 C.F.R. § 3.160(c); see Richardson v. Nicholson, 20 Vet.App. 64, 72 n. 8 (2006). A claim will also be considered to be pending if the DVA has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision. Cook v. Principi, 318 F.3d 1334, 1340 (Fed.Cir.2002) (en banc). If a claim is left pending, it can be addressed when a subsequent claim for the same disability is adjudicated by the DVA, in which case the effective date for any award of benefits will be the effective date applicable to the original claim. See Myers v. Principi, 16 Vet.App. 228, 236 (2002).

The dispute in this case turns on whether Mr. Adams's informal claim for service connection for endocarditis was denied by the regional office in October 1951. If the regional office considered and denied the endocarditis claim in 1951, that claim became final after the Board's 1952 affirmance, and Mr. Adams is not entitled to an effective date of 1951 for his endocarditis claim. However, if...