Barnett v. Brown, 95-7058

Citation83 F.3d 1380
Decision Date06 May 1996
Docket NumberNo. 95-7058,95-7058
PartiesFlora L. BARNETT, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Linda E. Blauhut, Paralyzed Veterans of America, Washington, DC, argued for claimant-appellant. With her on the brief were Michael P. Horan and William S. Mailander.

Jennifer M. Hong, Commercial Litigation Branch, Department of Justice, Washington, DC, argued for respondent-appellee. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director and Joseph A. Kijewski, Assistant Director. Also on the brief were Richard J. Hipolit, Deputy Assistant General Counsel and David J. Barrans, Staff Attorney, Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, MICHEL, and RADER, Circuit Judges.

MICHEL, Circuit Judge.

Flora L. Barnett appeals the April 13, 1995 decision of the United States Court of Veterans Appeals ("CVA"), Barnett v. Brown, 8 Vet.App. 1 (1995), affirming the September 13, 1993 decision of the Board of Veterans' Appeals ("Board") declining to reopen her claim for benefits that may be due a surviving spouse or to further consider its prior determination of no service connection of her husband's death on the ground that no new and material evidence had been proffered. The appeal was submitted for our decision following oral argument on March 5, 1996. Because the Board was obligated by statute to preliminarily determine if new and material evidence had been presented and because its determination is unreviewable here, we affirm.

BACKGROUND

Mrs. Barnett's husband, Boyd Barnett, served on active duty in the United States Navy from August, 1942, to December, 1944. In January, 1945, the Veterans Administration (now Department of Veterans Affairs ("VA")) established a service connection for his post-operative duodenal ulcer. In April, 1968, Mr. Barnett was diagnosed as suffering anxiety reaction and external precipitated depression. In June, 1968, a VA regional office determined that his anxiety reaction and gastrointestinal disorders were interrelated and awarded a service connection for "anxiety reaction with post gastrectomy." The diagnosis of "anxiety reaction" was subsequently changed to "schizophrenia." In November, 1972, Mr. Barnett was diagnosed with chronic obstructive pulmonary disease ("COPD").

Mr. Barnett died in August, 1987, as the result of respiratory arrest due to pneumonia. His death certificate identifies the cause of death as "Respiratory Arrest Due to, or as a Consequence of Pneumonia" and lists COPD under the heading "Other Significant Conditions."

After Mr. Barnett's death, Mrs. Barnett filed an application for Dependency and Indemnity Compensation, asserting that her husband's death was the result of his naval service. 1 With her application, she submitted a copy of the death certificate and records from 1986 and 1987 that documented her husband's treatment for chest pains, severe low back pain, COPD, tachycardia, pneumonia, and congestive heart failure. Although schizophrenia was listed as a diagnosis in the medical records, it was never identified in the records as a causative factor in the veteran's physical problems. In November, 1987, the regional office denied Mrs. Barnett's application, concluding that "[t]he evidence does not establish that the veteran's death was due to a service-connected disability."

In December, 1987, Mrs. Barnett submitted a Medical Certificate from Dr. Friday, who had treated Mr. Barnett for several years, expressing the opinion that his death was hastened by his schizophrenic condition. The regional office continued to deny Mrs. Barnett's claim, and, in August, 1988, Mrs. Barnett filed a Notice of Disagreement ("NOD"). Thereafter, the regional office sent to Mrs. Barnett its Statement of the Case setting forth its explanation of its decision. The Statement of the Case specifically noted that Dr. Friday's certificate was considered by the regional office as part of the evidence presented.

On November 7, 1988, Mrs. Barnett filed her appeal with the Board, and, in June, 1989, the Board upheld the denial of service connection for her husband's cause of death. The Board concluded that (a) Mr. Barnett did not have a service-connected lung disorder, and (b) contemporaneous medical evidence did not show that his service-connected schizophrenia interfered significantly with the treatment of his respiratory problems.

In April, 1990, Mrs. Barnett sought to reopen her case in the regional office and On June 11, 1990, Mrs. Barnett submitted an NOD regarding the confirmed rating decision. In July, 1990, the regional office issued a Statement of the Case explaining the basis for the denial of service connection in the confirmed rating decision. Mrs. Barnett appealed again to the Board. Subsequently, at an informal hearing before the Board on November 19, 1990, Mrs. Barnett's veterans service organization representative urged the Board to apply 38 C.F.R. § 3.156, which pertains to new and material evidence, to Dr. Friday's second communication. The Board then remanded the case for the regional office to issue a Supplemental Statement of the Case ("SSOC"), citing the law and regulations pertaining to finality of decision before further proceedings could continue before the Board. The regional office issued an SSOC on February 19, 1991, that specified the pertinent law and regulations, including 38 C.F.R. § 3.156. It also stated that without new and material evidence the claim could not be reopened.

                submitted a letter from Dr. Friday that gave several examples of how Mr. Barnett's schizophrenia affected his medical condition.   In response, on April 25, 1990, the VA regional office issued a "confirmed rating decision" (VA form 21-6789), stating that a review of the evidence showed no basis for changing the prior decision.   On the form, the regional office called Mrs. Barnett's claim a "Reopened Claim," but the same form also stated that "[t]his evidence does not ... contain any new and material evidence...."  In a June 6, 1990, letter to Mrs. Barnett, the regional office stated that it had reviewed Dr. Friday's letter and concluded that, "[b]ased on this evidence, no basis is shown for a change in our prior decision."
                

In April, 1992, after a hearing at which Mrs. Barnett's representative once again acknowledged the new and material evidence rule, the Board remanded the case once again to the regional office to obtain and consider further medical treatment records in addition to Dr. Friday's letter. In its remand decision, the Board stated that "[b]efore [it] can decide whether the appellant's claim is reopened," it needed additional medical records.

After reviewing all the records, the regional office again issued "confirmed rating decisions" in July and August, 1992, denying a service connection for the cause of death because there was "no evidence received showing the veteran received less than adequate care throughout his life for multiple medical problems due to his S/C schizophrenia." The regional office did not expressly decide whether the medical treatment records or Dr. Friday's letter were new and material evidence. In January, 1993, once again before the Board, Mrs. Barnett's representative argued that evidence qualifying as new and material evidence had indeed been presented.

In September, 1993, however, the Board concluded that no new and material evidence had been submitted as required to reopen the claim. It found that the letter by Dr. Friday and the medical treatment records were merely cumulative and failed to substantiate the doctor's previous assertion in his certificate that the schizophrenia contributed to or hastened Mr. Barnett's decline. In April, 1995, the CVA affirmed the September, 1993 decision of the Board. Before the CVA, Mrs. Barnett argued that, because the regional office adjudicated her claim, apparently on the merits, and failed expressly to rely on the new and material evidence rule, the Board could only consider the merits of the claim. Also, she contended that she had not been given proper notice of the applicability of the new and material evidence rule and was therefore prejudiced in prosecuting her appeal. The CVA held that the Board was correct in first resolving the new and material evidence issue. The CVA also found that, on several occasions, Mrs. Barnett's representative had acknowledged the new and material evidence issue as before the Board, and, in any event, that it was effectively the same issue as the merits. Therefore, she was not prejudiced by the Board's action or the alleged lack of notice.

On appeal, Mrs. Barnett contends that the CVA erred in holding that 38 U.S.C. §§ 5108 and 7104 require that the Board determine whether new and material evidence is presented before reopening a claim regardless of what, if anything, was determined by the

                regional office regarding new and material evidence.   In addition, she asserts that she had not been given sufficient notice that the new and material evidence issue might be relied on in the Board's determination
...

To continue reading

Request your trial
37 cases
  • Disabled American v. Sec. of Veterans Affairs
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • 1 Mayo 2003
    ...been disallowed by the Board in the absence of new and material evidence as required by 38 U.S.C. § 5108. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir.1996); cf. 38 U.S.C. § 7111 (2000) (stating that decisions of the Board may also be revised for clear and unmistakable Section 19.9(a)(......
  • Routen v. West
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • 30 Abril 1998
    ...(allowing the application of res judicata to administrative agency determinations that have attained finality); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed.Cir.1996) (determining that the court lacked jurisdiction to review the Court of Veterans Appeals' decision affirming the Board's deni......
  • Boggs v. Peake
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • 26 Marzo 2008
    ...the Secretary shall reopen the claim and review the former disposition of the claim." See also 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir.1996) ("[T]he Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidenc......
  • Zevalkink v. Brown
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • 17 Diciembre 1996
    ...or a challenge to a law or regulation as applied to the facts of a particular case. 38 U.S.C. § 7292(d)(2); see Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir.1996). The Court of Veterans Appeals' interpretation of the requirements of § 5121 and other statutory provisions as well as the ques......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT