Ephraim v. Brown, 94-7035

• Decision Date: 26 April 1996
• Docket Number: No. 94-7035,94-7035
• Citation: 82 F.3d 399
• Parties: Moray L. EPHRAIM, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 399

82 F.3d 399

Moray L. EPHRAIM, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.

No. 94-7035.

United States Court of Appeals Federal Circuit.

April 26, 1996.

Appealed from: United States Court of Veterans Appeals Judge Holdaway.

Ruth Eisenberg, National Veterans Legal Services Project, of Washington, D.C., submitted for claimant-appellant. Stephanie Martin F. Hockey, Jr., Attorney, Commercial Litigation Branch, Department of Justice, of Washington, D.C., submitted for respondent-appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director and Joseph A. Kijewski, Assistant Director. Also on the brief was Nicole Sideris, Department of Veterans Affairs, Washington, D.C., of counsel.

Forester, National Veterans Legal Services Project, of Washington, D.C., was on the brief for claimant-appellant.

Before ARCHER, Chief Judge, RICH and NEWMAN, Circuit Judges.

PAULINE NEWMAN, Circuit Judge.

The jurisdiction of the United States Court of Veterans Appeals is limited to appeals of claims for which a notice of disagreement was filed on or after November 18, 1988, the date set in the Veterans' Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (see 38 U.S.C. § 7251 note). For failure to meet this requirement the Court of Veterans Appeals dismissed the appeal of Moray L. Ephraim. ¹ The Court of Veterans Appeals held, in a split decision, that Mr. Ephraim had not stated a new claim when he sought a new disability rating after the diagnosis of a new condition that was found by the court to be "intertwined" with a previously diagnosed condition. Thus the court held that it did not have jurisdiction because the date of Mr. Ephraim's previous notice of disagreement was before November 18, 1988. The court held that his later notice of disagreement did not relate to a new claim following the Regional Office's decision denying an increased rating based on the new diagnosis. We vacate the dismissal, for we conclude that the jurisdictional requirement was met, as a matter of law, when the new notice of disagreement related to a claim based on the diagnosis of a condition that was not known to be present at the time of the previous notice of disagreement.

Appeal to the Federal Circuit from a decision of the Court of Veterans Appeals is limited to cases that require review of the validity or interpretation of a statute, regulation, or constitutional provision, including matters of statutory jurisdiction, authority, or limitations. 38 U.S.C. § 7292(d)(1)(C). Thus a jurisdictional rule of the Court of Veterans Appeals invokes the Federal Circuit's appellate responsibility, except that, unless the appeal presents a constitutional issue, we do not review factual findings or the application of law to particular facts. 38 U.S.C. § 7292(d)(2).

BACKGROUND

The case arose on the following factual background: In June 1986 the Regional Office reduced Mr. Ephraim's disability rating for his known disorder of depressive neurosis from 50% to 10%. Mr. Ephraim filed a notice of disagreement in May 1987. There were several continuing proceedings, but the agency adhered to the 10% disability rating. During further medical evaluations Mr. Ephraim was diagnosed with post-traumatic stress disorder (PTSD). In September 1989 Mr. Ephraim filed a disability claim that requested a rating for "nervous disorder with consideration for PTSD." The Regional Office responded, stating "[w]e have received your claim for service connection for post traumatic stress disorder," and requested further information to support this claim.

On March 8, 1990 the Regional Office found that there was service connection for "post-traumatic stress disorder with depressive neurosis." The Regional Office described the disability rating for this condition as "10% from 11-1-89." In May 1990 Mr. Ephraim filed a notice of disagreement with that decision. The review procedures continued, and in May 1992 the Board of Veterans Appeals increased the disability rating from 10% to 30%, for "depressive neurosis with post-traumatic stress disorder." Mr. Ephraim appealed the Board's decision to the Court of Veterans Appeals, stating that the rating was still incorrect and that the new diagnosis of post-traumatic stress disorder warranted an increased rating.

Proceedings before the court were stayed pending decision of Hamilton v. Brown, 4 Mr. Ephraim's May 1990 notice of disagreement challenged the agency's decision denying increased benefits based on the diagnosis of post-traumatic stress disorder. Mr. Ephraim's position is that post-traumatic stress disorder is not the same disease as depressive neurosis, and therefore that his claim filed in September 1989 is not the same as his prior claim. The Court of Veterans Appeals held that Mr. Ephraim's claim filed in September 1989 had not "raised a separate and distinct disability claim that had not been previously considered." Ephraim, 5 Vet.App. at 550. The court held that the new notice of disagreement of May 1990, protesting the disability rating for the September 1989 claim, was simply a "disagreement with a subsequent readjudication of a remanded claim," id., and dismissed Mr. Ephraim's appeal for lack of jurisdiction. This appeal followed.

                Vet.App. 528 (1993) (en banc ), aff'd, 39 F.3d 1574 (Fed.Cir.1994).   The Court of Veterans Appeals held in Hamilton that there can be only one valid notice of disagreement for a claim, and that the initial notice of disagreement extends to all subsequent adjudications of the same claim, even if there are subsequent proceedings based on remands or appeals within the agency's administrative structure.   The Federal Circuit affirmed, stating that an existing claim can not

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