Ag v. Peake

• Decision Date: 15 August 2008
• Docket Number: No. 2007-7217.,2007-7217.
• Citation: 536 F.3d 1306
• Parties: AG, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

536 F.3d 1306

AG, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.

No. 2007-7217.

United States Court of Appeals, Federal Circuit.

August 15, 2008.

Brian P. Anderson, Kirkpatrick & Lockhart Preston Gates Ellis LLP, of Pittsburgh, PA, argued for claimaint-appellant. Of counsel was Harry W. Turner.

Dawn S. Conrad, 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 Todd M. Hughes, Deputy Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Y. Ken Lee, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Before MICHEL, Chief Judge, PROST, Circuit Judge, and POGUE,^* Judge.

POGUE, Judge.

This case raises the issue of whether, in the absence of a notice of a veteran's right to appeal, the Department of Veterans Affairs' ("VA's") 1985 dismissal of that veteran's claim is final. Appellant AG, the veteran, challenges the 1985 dismissal of his claim. Because the governing rule of law established by the Court of Appeals for Veterans Claims ("Veterans Court") requires that failure to notify a veteran of his right of appeal renders the Secretary of Veterans Affairs' decision non-final, see Best v. Brown, 10 Vet.App. 322, 325 (1997), we vacate and remand.

I.

As noted above, this case involves our review of the Veterans Court's application of a rule of law. See 38 U.S.C. § 7292(a)(2000). The statute that articulates AG's right of review, however, also precludes our review of factual determinations and the application of law to the facts of a particular case, except in constitutional cases. 38 U.S.C. § 7292(d)(2). Nonetheless, in order to assess AG's contentions, it is necessary to summarize the facts and background of the case before us.

The facts related to AG's disability claim proceed from his active military service from February 1966 to November 1969. More than a decade after that service, in December 1982, AG filed a claim for service connection for a "nervous condition." The Regional Office ("RO") of the VA to which AG submitted his claim denied AG benefits on April 11, 1983. In denying AG's claim, the RO stated that "there is insufficient evidence to show that the veteran is suffering from post traumatic stress neurosis," and stated that if AG wanted to reopen his claim, "he should contact the nearest VA facility when he is willing to continue with his social service exam." VA records, however, indicate that during 1982, AG sought and received treatment through the Vietnam Veterans Outreach Program ("VVOP"), a program run by the VA in Pittsburgh, Pennsylvania. These sessions were conducted by a VA-trained counselor, Dave McPeak, who created a record of AG's treatment. The VVOP records were not considered by the RO in its 1983 denial of AG's claim for benefits.

AG alleges that he sent a letter, or notice of disagreement ("NOD"),¹ regarding the RO's denial of his claim, in February 1984, within the one year statute of limitations for filing a NOD. But AG's 1984 letter does not appear in the VA's files. In June 1985, however, AG sent another letter inquiring about his February 1984 letter.² The RO determined that AG had not filed a NOD in 1984, and considered the June 1985 letter to be a NOD to the April 1983 decision. The RO then dismissed the 1985 NOD as untimely. The VA, however, has no record of notifying AG of his right to appeal the finding that his NOD was not timely filed.

AG re-opened his claim for benefits on July 19, 1993. In March 1996 he was awarded disability benefits at a 30% rating for his service-related PTSD, effective as of the 1993 filing date. AG's subsequent request for the earlier effective date of 1983 was denied by the RO in October 1998.

AG appealed this 1998 determination to the Board of Veterans Appeals ("BVA"), and, in November 2000, submitted records from his treatment at the VVOP. His appeal alleged "clear and unmistakable error" ("CUE")³ in the April 1983 RO decision, for failure to consider the VVOP records. In April 2001, after a remand from the BVA, the RO determined there was no CUE. The BVA also concluded that there was no CUE because the VVOP records were not part of the record at the time of the RO decision, and the applicable law at the time did not charge the RO with constructive knowledge of those records.

On appeal from the BVA, the Veterans Court affirmed, and further found that even had the VVOP records been considered constructively before the RO, AG failed to demonstrate that consideration of the records would have been outcome-determinative, because the records do not contain medical diagnoses and were not signed by a medical professional. AG v. Nicholson, Case No. 04-703, 21 Vet.App. 411, 2006 WL 2798304 (Vet.App. Sep. 13, 2006). The Veterans Court noted that the burden was on AG to "show how the outcome would have been manifestly different if the alleged error had not occurred." Id. at *3 (citations omitted). The Veterans Court also affirmed the BVA's denial of the earlier effective date. In denying AG an earlier effective date, the Veterans Court held that the 1983 denial had become final when AG failed to appeal the 1985 determination that he had not timely filed a NOD. Id. at *2. The Veterans Court explained that "[h]aving failed to appeal the 1985 determination that his NOD was untimely, that determination must now be attacked collaterally," id. (citing DiCarlo v. Nicholson, 20 Vet.App. 52, 57-58 (2006)), i.e., through the establishment of CUE.

On appeal to this court, AG argues (1) that the Veterans Court erred by failing to address his claim for equitable tolling of the RO's 1985 determination, and that this court should find that tolling applies to the time limit for bringing NODs under 38 U.S.C. § 7105 and (2) that the RO's April 1983 denial of benefits constituted CUE as a result of the VA's failure to obtain and consider treatment records from a VA facility in which AG was undergoing treatment.

We heard oral argument on April 9, 2008.

II.

Under the statute providing for this court's review of an appeal from a decision by the Veterans Court, we decide all relevant questions of law, see 38 U.S.C. § 7292(d)(1); we review the Veterans Court's legal determinations de novo, Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991). We may "affirm or, if the decision of the [Veterans Court] is not in accordance with law, [ ] modify or reverse the decision of the [Veterans Court] or [ ] remand the matter, as appropriate." 38 U.S.C. § 7292(e)(1).

II.

We remand here because the RO's June 1985 decision—that AG did not timely appeal the 1983 denial of his claim— never became final. This is because of the VA's failure to notify AG of his right to appeal. As a result, the 1983 proceedings are ongoing because they have not been concluded. Accordingly, the first issue that AG raises on appeal—the claim of error in the Veterans Court's failure to address his claim for equitable tolling in the 1985 dismissal of his claim—is not ripe, and this court need not decide the equitable tolling issue. The second issue AG raises here—that the VA's denial of benefits is the result of CUE—is also not ripe. If AG succeeds in appealing the 1985 determination or otherwise convinces the VA that 38 C.F.R. § 3.109(b)⁴ applies to his situation, his challenge to the denial of his benefits will be made, in the first instance, to the agency upon remand.

To explain this conclusion, we will first examine the parties' arguments regarding the lengthy administrative process that led to the instant appeal.

AG argues that his condition prevented him from timely filing a NOD to the April 1983 denial of benefits, and contends that application of the doctrine of equitable tolling would result in a decision that the 1983 determination never became final. AG finds support for this argument in Barrett v. Principi, in which we held that mental illness can excuse the failure to timely file a notice of appeal from a BVA decision. Barrett v. Principi, 363 F.3d 1316 (Fed. Cir.2004). AG argues that the reasoning of that case applies equally to failures to timely file a NOD under 38 U.S.C. § 7105(b). Appellant's Br. 17-18. Tolling the time limit for appeal would relieve AG of proving that the RO's failure to locate and review the records of his treatment was outcome-determinative.⁵ Rather, further proceedings would be a continuation of the 1983 proceedings, in which evidence, such as the VA records, would be considered.

As noted above, however, it is not necessary to decide AG's equitable tolling issue. Although the Veterans Court found that "even if [the VVOP] records were constructively before the RO in 1983, they would not have changed the outcome of the case," AG v. Nicholson, Case No. 04-703 at *3, its review of the records was exclusively conducted under the CUE standard. But if the 1985 decision was not final, as we hold here, and AG succeeds in overturning that decision on remand, he can proceed with a direct challenge to the 1983 decision on the merits. In that event, the VVOP records would not be required to meet the stringent CUE standard but would instead be evaluated as part of a direct appeal.

In response to AG's claim, the government argues that it would be inappropriate to extend the holding of Barrett v. Principi to allow equitable tolling for the filing deadline of a NOD, because there is already a regulation that addresses time extensions for filing NODs. Respondent's Br. 16; see 38 C.F.R. § 3.109(b) (1990). Procedurally, however, the government's main argument is that "AG in actuality challenges the June 1985 RO decision regarding the finality of the April 1983 RO decision," Respondent's Br. 10-11, and that AG can only challenge the 1985 decision through a CUE claim as a result...