Boggs v. Peake

• Citation: 520 F.3d 1330
• Decision Date: 26 March 2008
• Docket Number: No. 2007-7137.,2007-7137.
• Parties: Clinton C. BOGGS, Jr., Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

520 F.3d 1330

Clinton C. BOGGS, Jr., Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.

No. 2007-7137.

United States Court of Appeals, Federal Circuit.

March 26, 2008.

Richard A. Kaplan, Sidley Austin LLP, of Washington, DC, argued for claimantappellant. Of counsel on the brief were Barton F. Stichman and Louis J. George, National Veterans Legal Services Program, of Washington, DC.

Michael N. O'Connell, 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 Jeanne E. Davidson, Director, and Martin F. Hockey, Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Jamie L. Mueller, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before GAJARSA and DYK, Circuit Judges, and MORAN, Senior District Judge.^*

GAJARSA, Circuit Judge.

Claimant-Appellant Clinton C. Boggs, Jr. appeals a decision of the Court of Appeals for Veterans Claims ("CAVC") affirming a decision of the Board of Veterans' Appeals ("Board") that denied his 2002 claim for service connection. The central issue on appeal is whether Boggs' 2002 claim is the same as a 1955 claim that had already been denied by the Board, or rather is a new claim that should have been reviewed by the Board on the merits. Because the CAVC applied the wrong legal standard in determining that Boggs' 2002 claim was the same as his 1955 claim, we reverse and remand for further proceedings.

BACKGROUND

Boggs served on active duty in the "U.S. Army from December 1950 to March 1954. During this time, he served in combat in the Korean Conflict as part of the 69th Field Artillery Unit of the 25th Infantry Division. Based on this service, Boggs received the Korean Service Medal with two Campaign Stars, the National Defense Service Medal, and the United Nations Service Medal.

In 1955, Boggs filed a claim for service connection for a "left ear condition." A Department of Veterans Affairs ("VA") medical examiner diagnosed Boggs as suffering from a chronic ear infection in his left ear, which had originated in 1941, and conductive hearing loss in his left ear. Conductive hearing loss is caused by problems in the external or middle ear, which often include ear infections or obstructions such as earwax. The Merck Manual § 8 at 781-83 (18th ed.2006) (hereinafter "Merck Manual"). Shortly after Boggs was diagnosed with conductive hearing loss, the VA Regional Office ("RO") reviewed Boggs' claim and concluded that his conductive hearing loss was caused by an ear infection that originated before his military service. The RO also found that there was no evidence of any other servicerelated trauma or disease that caused or aggravated his conductive hearing loss. Accordingly, the RO denied Boggs' claim for service connection.

Nearly 50 years later, on October 2, 2002, Boggs filed a second application for service connection for hearing loss in his left ear. While his application was pending with the VA, Boggs visited a private physician who diagnosed Boggs as having sensorineural hearing loss. Unlike conductive hearing loss, which results from a problem in the middle or outer ear, sensorineural hearing loss results from lesions of the inner ear or auditory nerve. Merck Manual at 781. In addition, whereas conductive hearing loss is often caused by ear infections or obstructions, sensorineural hearing loss is often caused by acoustic trauma or repeated exposure to loud noise. Id. at 782-83.

Initially, the RO treated Boggs' 2002 claim as an attempt to reopen his 1955 claim and notified him that new and material evidence would be required to reopen his claim. However, when the RO ultimately considered Boggs' 2002 claim, its decision only referred to the claim as a "new claim" and failed to specify the new and material evidence requirement. Accordingly, the RO conducted a de novo review of the evidence offered by Boggs to support his 2002 claim for service connection. Among the evidence the RO considered were the recent medical treatment reports from Boggs' private physician diagnosing him with sensorineural hearing loss. Despite this evidence, the RO found that Boggs had failed to establish that his injury was related to his military service. Accordingly, the RO denied Boggs' claim for service connection. Boggs then appealed to the Board.

Although the RO's decision appears to have treated Boggs' 2002 claim as a new claim, the Board determined that Boggs was attempting to reopen his 1955 claim. The Board's rationale was that both the 2002 and 1955 claims involved left-ear hearing loss. Moreover, the Board found that Boggs had failed to present new and material evidence to support his claim, which pursuant to 38 U.S.C. § 5108 and 38 C.F.R. § 3.156, is required to reopen a claim that has been denied by the Board. In particular, the Board found that Boggs' diagnosis for sensorineural hearing loss was cumulative with the evidence of conductive hearing loss he had submitted for his 1955 claim. Based upon its finding that Boggs failed to present new and material evidence, the Board denied Boggs' 2002 claim as a failed attempt to reopen his 1955 claim. Boggs then appealed to the CAVC.

Before the CAVC, Boggs argued that the Board erred by categorizing his 2002 claim as a claim for hearing loss rather than as a claim for sensorineural hearing loss. Essentially, Boggs argued that his 2002 claim was for sensorineural hearing loss that was caused by the loud noises he experienced on the artillery lines in the Korean Conflict, as distinguished from his 1955 claim for conductive hearing loss that had been caused by his preexisting chronic ear infection. The CAVC disagreed. The CAVC held that hearing loss is the same injury whether it involves an injury to the inner ear (sensorineural hearing loss) or an injury to the middle or outer ear (conductive hearing loss). In particular, despite acknowledging that conductive hearing loss and sensorineural hearing loss have different etiologies, i.e. causes, the CAVC held that they should be considered the same because they involve the same symptomatology, i.e. loss of hearing. Thus, because Boggs' 2002 and 1955 claims both involved left-ear hearing loss, the CAVC concluded that the Board had not erred in denying Boggs' 2002 claim as an attempt to reopen his 1955 claim. Boggs now appeals the CAVC's decision to this court.

JURISDICTION AND STANDARD OF REVIEW

This court has exclusive but limited jurisdiction to review decisions of the CAVC under 38 U.S.C. § 7292(c). Specifically, we have "exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c). However, "[e]xcept to the extent that an appeal under this chapter presents a constitutional issue, the Court of Appeals may not 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)(2). In the present case, we have jurisdiction to interpret 38 U.S.C. § 7104(b) to determine the correct legal standard for deciding whether two claims for service connection are one and the same.

In reviewing the decision of the CAVC, this Court must decide "all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1). We review construction of a statute or regulation de novo. Summers v. Gober, 225 F.3d 1293, 1295 (Fed.Cir.2000).

ANALYSIS

As a general rule, "when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered." 38 U.S.C. § 7104(b) (emphasis added). The purpose of § 7104(b) is "to preserve the finality of Board decisions." Dittrich v. West, 163 F.3d 1349, 1351 (Fed.Cir.1998). There are only two statutorily created exceptions to the rule of finality for veterans claims in § 7104(b). Cook v. Principi 318 F.3d 1334, 1337 (Fed.Cir.2002) (en banc). First, under 38 U.S.C. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, 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 evidence is presented, and before the Board may reopen such a claim, it must so find."). Second, a final decision "is subject to revision on the grounds of clear and unmistakable error." Cook, 318 F.3d at 1337 (quoting 38 U.S.C. §§ 5109A (decision by the Secretary) & 7111 (decision by the Board)). Thus, absent a claim of clear and unmistakable error, a veteran must present new and material evidence to support any claim for service connection that rests upon the same factual basis as an earlier claim that has been denied by the Board.

In this case, this court must decide for the first time when two claims should be considered to have the "same factual basis" for purposes of 38 U.S.C. § 7104(b). If a veteran's claim does not have the same factual basis as a prior claim, then the veteran is not seeking to reopen his prior claim but rather is opening a new claim. Moreover, if the veteran is opening a new claim, the new and material evidence requirement of 38 U.S.C. § 5108 is inapplicable.

The legislative history of 38 U.S.C. § 7104(b) indicates that the "factual basis" of a veteran's claim for service connection is the veteran's underlying disease or injury, rather than the symptoms of that disease or injury. In 1957, Congress consolidated "into a...