Deshotel v. Nicholson

• Citation: 457 F.3d 1258
• Decision Date: 27 July 2006
• Docket Number: No. 05-7155.,05-7155.
• Parties: James L. DESHOTEL, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

457 F.3d 1258

James L. DESHOTEL, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

No. 05-7155.

United States Court of Appeals, Federal Circuit.

July 27, 2006.

Francis M. Jackson, Jackson & MacNichol, of Portland, Maine, argued for claimant-appellant.

John S. Groat, 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 Bryant G. Snee, Assistant Director. Of counsel on the brief were Michael J. Timinski and Amanda R. Blackmon, Attorneys, United States Department of Veterans Affairs, of Washington, DC.

Before GAJARSA, DYK, and PROST, Circuit Judges.

DYK, Circuit Judge.

James L. Deshotel seeks review of the decision of the United States Court of Appeals for Veterans Claims ("Veteran's Court") dismissing his appeal for lack of jurisdiction. We affirm.

BACKGROUND

Deshotel served on active duty in the United States Army from October 1965 to May 1969. During his service, he was involved in a car accident resulting in a cerebral concussion and a dislocated shoulder and fractured clavicle. In May 1969, Deshotel filed a claim for disability compensation benefits for his injuries. The Department of Veterans Affairs ("VA") regional office ("RO") granted service connection for Deshotel's shoulder injury, finding the injury to be 20% disabling but did not grant service connection for his residual head injury claims. There is no contention here that this May 1969 claim included a claim for psychiatric disability.

In July 1984, Deshotel filed an application to reopen his denied claim for service connection for residuals of his head injury and, it appears, for an increased disability rating for his back and shoulder injuries. Deshotel contends that under our decisions in Moody v. Principi, 360 F.3d 1306 (Fed. Cir.2004), Szemraj v. Principi, 357 F.3d 1370 (Fed.Cir.2004), and Roberson v. Principi, 251 F.3d 1378 (Fed.Cir.2001), the VA was required to construe this pro se claim sympathetically to include a claim for psychiatric disability as well as a claim for physical disability resulting from the head injury. In January 1985, after conducting a medical examination (including a psychiatric examination), the RO granted service connection for "status post head trauma with post traumatic headaches," finding the injury to be 10% disabling. The RO's decision did not specifically address any secondary claim for psychiatric disability, although it did note in its narrative that the "VA exam shows no psychiatric symptomatology noted at present time." Deshotel did not appeal from this rating determination.

In August 1999, Deshotel again sought to reopen his compensation claim, this time to include claims for "memory loss and depression due to head/brain disease." In addressing this claim in September 1999, the RO explicitly treated Deshotel's claim as including a psychiatric claim based on new and material evidence. The RO increased Deshotel's disability from 10% to 30% for the head trauma and headaches, but deferred a rating as to memory loss and depression (the "psychiatric" disability claims) secondary to the service-connected head injuries until further medical records were available. In March 2000, the RO denied service connection for Deshotel's psychiatric disability claims. Deshotel then began the appeal process by filing a notice of disagreement ("NOD"). In response, on October 20, 2000, the RO issued a new decision in which it found a 70% service-connected psychiatric disability for "mood disorder, personality change and cognitive disorder secondary to traumatic brain injury with post-traumatic headaches," effective from August 4, 1999, the date on which Deshotel sought to reopen his claim. J.A. at 5.

Deshotel then filed a second NOD, arguing that the effective date of the 70% psychiatric disability determination should have been July 20, 1984 — the date that Deshotel requested that his claim be reopened. The RO notified Deshotel that it construed his second NOD as raising an allegation of clear and unmistakable error ("CUE") in the RO's January 1985 decision — specifically, an allegation that the 1985 decision was erroneous because the psychiatric examination "failed to identify any psychiatric disability" even though the evidence indicated that Deshotel in fact had a psychiatric disability at the time. J.A. at 248. The RO found no CUE in the January 1985 decision.

Deshotel appealed to the Board of Veterans' Appeals ("Board"). The Board concluded that the RO's January 1985 decision had "implicitly" denied any claim for service connection based on psychiatric disability and that there was no CUE in that decision. Deshotel then appealed to the Veteran's Court. Deshotel made two arguments to the Veteran's Court. First, Deshotel directly challenged the October 2000 decision, arguing that the RO "erred by selecting an effective date in 1999 and not in 1984 ... and that [Deshotel's] 1984 claim and the [1985 RO] decision `[gave] rise to an informal claim of psychiatric disability' that was not adjudicated until October 2000 ...." Deshotel v. Nicholson, No. 03-517, 2005 WL 496685, 19 Vet.App. 465, at *3 (Feb. 3, 2005). Second, Deshotel argued CUE in the 1985 decision because the RO "overlook[ed] the significant findings of the psychiatric report ...." Id. The Veteran's Court determined that it lacked jurisdiction over both of these arguments. With respect to Deshotel's first argument, the Veteran's Court decision is less than clear, curiously and incorrectly stating that "there has been no Board decision on the issue of entitlement to an effective date prior to August 4, 1999 ...." Id. at *5. Nonetheless, we understand the Veteran's Court to have held that it lacked jurisdiction to consider an appeal from the RO's 1985 decision because that decision had become final and "only a claim of [CUE] could have resulted in an effective date prior to the January 1985 regional office decision for the October 2000 award ...." Id. at *4. With respect to Deshotel's second argument regarding CUE in the 1985 decision, the Veteran's Court held that this specific CUE argument (that the RO overlooked findings that had been made in the psychiatric report) had not been raised to the Board and that Deshotel had instead argued a different CUE to the Board (that the VA medical examiner erred by failing to diagnose or making a finding of psychiatric disability despite the alleged evidence of the disability). Thus, the Veteran's Court dismissed Deshotel's appeal for lack of jurisdiction. Deshotel timely appealed to this court, reasoning under the first argument. We have jurisdiction under 38 U.S.C. § 7292 because Deshotel alleges legal error in the Veteran's Court decision. Szemraj, 357 F.3d at 1374-75.

DISCUSSION

The effective date of an award based on a veteran's request to reopen a final decision on the basis of new and material evidence is generally the date that the application to reopen was filed. 38 U.S.C. § 5110(a) (2000); Sears v. Principi, 349 F.3d 1326, 1330-31 (Fed.Cir. 2003). In contrast, the reopening of a final decision based on CUE "has the same effect as if the [reopening] decision had been made on the date of the prior decision." 38 U.S.C. §§ 5109A(b), 7111(b) (2000). Generally, an RO's initial determination will become final unless the veteran appeals that determination to the Board. Cook v. Principi, 318 F.3d 1334, 1340 (Fed.Cir.2002) (en banc).

In this case, if the RO's 1985 decision was a final decision, then Deshotel could not claim 1984 as the effective date for his psychiatric disability unless he could establish CUE in the 1985 decision. However, on appeal to this court, Deshotel has elected not to pursue a CUE claim. Instead, Deshotel contends that the 1985 decision was not final as to his psychiatric claim because that claim was never explicitly addressed in the 1985 RO decision. Therefore, he argues, the 1985 psychiatric claim remained pending and unadjudicated until the RO's October 2000 decision, which granted the psychiatric claim but rejected the 1984 effective date.¹ Appellant's Br. at 8-9. We conclude that the 1985 decision constituted a final decision on the psychiatric claim.

Where the veteran files more than...