Ledford v. West

Decision Date12 February 1998
Docket NumberNo. 97-7061,97-7061
Citation136 F.3d 776
PartiesTerry A. LEDFORD, Claimant-Appellant, v. Togo D. WEST, Jr., Acting Secretary of Veterans Affairs, Respondent-Appellee.
CourtU.S. Court of Appeals — Federal Circuit

Michael P. Horan, Associate General Counsel, Paralyzed Veterans of America, Washington, DC, argued for claimant-appellant.

Pamela A. Roth, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 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 Anthony H. Anikeeff, Assistant Director. Of counsel were Richard J. Hipolit, Deputy Assistant General Counsel, and David J. Barrans, Staff Attorney, Department of Veterans Affairs, Washington, DC.

Before PLAGER, LOURIE, and BRYSON, Circuit Judges.

LOURIE, Circuit Judge.

Terry A. Ledford appeals from the final decision of the United States Court of Veterans Appeals dismissing his appeal in part for lack of jurisdiction. Ledford v. Brown, No. 95-285, 1997 WL 68114 (Vet.App. Feb. 13, 1997). Because the Court of Veterans Appeals did not err in dismissing his constitutional and statutory claims, we affirm.


Ledford served in the Air Force until he was discharged in 1976 due to schizophrenia. In December 1977, the Department of Veterans Affairs' (DVA's) Regional Office (RO) in Seattle, Washington granted Ledford a 100% disability rating based on individual unemployability. In January 1981, the Seattle RO changed his rating to a 100% schedular rating pursuant to VA Circular 21-80-7, which provided that "[a] 100% schedular evaluation will be assigned if unemployability is directly attributable to a service-connected neuro-psychiatric condition." The stated purpose of the Circular was to reestablish the DVA's control over the "many questionable or erroneous grants of individual unemployability." The rating change amounted in effect to a termination of Ledford's individual unemployability benefits.

In September 1985, Ledford was again examined by the DVA. Because the examiner found that Ledford's schizophrenia was in partial remission, the Seattle RO reduced his schedular rating to 70%. Ledford objected to this reduction and filed a Notice of Disagreement (NOD) with the Board of Veterans' Appeals in December 1985. See 38 U.S.C. § 7105(a) (1994). After several remands for further factual development, the Board in February 1990 confirmed the 70% rating. Ledford continued to disagree and filed another NOD on April 19, 1990. After reassessing the evidence, the Board increased Ledford's schedular rating to 100% and set the effective date for the increase at April 19, 1990.

Ledford then filed another NOD in November 1991 alleging that the effective date for the increase should have been set at February 1, 1986 because it was "clear and unmistakable error" (CUE) 1 for the Seattle RO to have decreased his rating in 1985. The Board disagreed and confirmed the April 19, 1990 effective date. In 1993, Ledford again complained about the Seattle RO's error, which the Board treated as a motion for reconsideration and denied in substance. 2 Ledford then appealed to the Court of Veterans Appeals.

Before the court, Ledford challenged, inter alia, the 1981 rating decision, which changed his individual unemployability rating to a schedular rating pursuant to the Circular. Specifically, he claimed that the Circular was invalid because (1) it was neither published in the Federal Register nor subject to notice and comment under the Administrative Procedure Act (APA), see 5 U.S.C. §§ 552(a)(1), 553 (1994) and 38 C.F.R. § 1.12 (repealed 1997), and (2) the operation of the Circular violated his due process rights under the United States Constitution because it was inconsistent with 38 C.F.R. § 3.343(c) (1997), which generally prescribes that a 100% individual unemployability rating can be reduced only upon proof of employability by clear and convincing evidence, an evidentiary standard Ledford asserts was not met in his case.

The court characterized Ledford's challenge to the 1981 rating decision as a CUE claim under 38 C.F.R. § 3.105(a) (1997). 3 The court then concluded that, because the CUE claim had not been raised before the Board, it lacked jurisdiction over that claim, and dismissed that portion of Ledford's appeal. Ledford appeals the dismissal to this court.


Our jurisdiction to review a decision of the Court of Veterans Appeals is limited by statute:

After a decision of the United States Court of Veterans Appeals is entered in a case, any party to the case may obtain review of the decision with respect to the validity of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.

38 U.S.C. § 7292(a) (1994); see also id. § 7292(c), (d) (vesting jurisdiction over review of Court of Veterans Appeals decisions in this court and setting certain standards for review); Fugere v. Derwinski, 972 F.2d 331, 334 (Fed.Cir.1992). Our jurisdiction does not extend to challenges either to factual determinations or to the application of the law to the facts of a particular case. 38 U.S.C. § 7292(d)(2). Whether the Court of Veterans Appeals had jurisdiction is a matter of statutory interpretation, see 38 U.S.C. § 7252 (defining the jurisdiction of the Court of Veterans Appeals), which this court reviews de novo. Wick v. Brown, 40 F.3d 367, 370 (Fed.Cir.1994).

Ledford argues that his APA and constitutional challenges to the Circular were properly brought before the Court of Veterans Appeals in the first instance and that these claims could not have been brought at the agency level, i.e., before the Seattle RO or the Board of Veterans Appeals, because the agency does not have the power to remedy such challenges. Ledford asserts that DVA regional offices and the Board are bound to follow VA circulars, regardless of their validity, and therefore that challenging the legality of the Circular at the agency The government responds that the Court of Veterans Appeals may review a decision of the Board only if the appeal to the Board was initiated by an NOD directed to the RO determination at issue and filed on or after November 18, 1988. See Veterans' Judicial Review Act of 1988, Pub.L. No. 100-687, § 402, 102 Stat. 4105 (1988) (VJRA); see also Hamilton v. Brown, 39 F.3d 1574, 1575-77 (Fed.Cir.1994) (summarizing the veterans' benefits appeals process). The government points out that it is uncontested that Ledford never filed an NOD contesting the validity of the Circular or the termination of his individual unemployability benefits in 1981. Moreover, the government asserts that Ledford cannot base jurisdiction in the Court of Veterans Appeals on his 1991 NOD because that NOD dealt with an entirely different issue, viz., the effective date of his 100% rating, an issue unrelated to his challenge to the Circular's validity or to the termination of his benefits thereunder. The government further contends that Ledford is incorrect in stating that his APA and constitutional challenges could not have been raised before the agency, and that Ledford must first have allowed the agency to decide whether it committed CUE in order to vest the Court of Veterans Appeals with jurisdiction. 4

stages of the veterans' benefits review process would have been futile. Ledford further asserts that his November 1991 NOD was sufficient to confer jurisdiction on the Court of Veterans Appeals even though that NOD addressed neither his disagreement with the 1981 termination of his individual unemployability benefits nor his APA and constitutional challenges to the termination.

We agree with the government and the Court of Veterans Appeals that the court lacked jurisdiction to consider Ledford's APA and constitutional challenges to the termination of his individual unemployability benefits in 1981. The statute that confers jurisdiction upon the Court of Veterans Appeals provides that the court has the "power to affirm, modify, or reverse a decision of the Board or to remand the matter as appropriate." 38 U.S.C. § 7252(a) (emphasis added). Thus, the court's jurisdiction is premised on and defined by the Board's decision concerning the matter being appealed. See id. § 7252(b) (Court of Veterans Appeal review "shall be on the record of proceedings before the Secretary and the Board."). However, the Board has never issued a decision concerning the 1981 termination of Ledford's individual unemployability benefits. Instead, the Board decision from which Ledford appealed dealt exclusively with the propriety of the effective date of the return of his schedular rating from 70% to 100%. 5 In short, there was no Board decision for the Court of Veterans Appeals to review concerning the propriety of the termination, and thus the court had no jurisdiction to consider that issue.

Furthermore, Court of Veterans Appeals jurisdiction was lacking for the additional reason that Ledford cannot point to an NOD that expresses disagreement with the termination of his individual unemployability benefits in 1981. See VJRA, § 402 (Court of Veterans Appeals jurisdiction limited to cases in which an NOD is filed on or after November 18, 1988). An NOD is required to initiate the appellate review process, 38 U.S.C. § 7105(a) (1994); it is defined by regulation as "[a] written communication from a claimant ... expressing dissatisfaction or disagreement with an adjudicative determination Ledford's 1991 NOD, which expressed disagreement with the agency's 1990 determination concerning the effective date for the increase in his schedular rating, is insufficient to confer jurisdiction upon the Court of Veterans Appeals over the agency's 1981 determination which terminated his individual unemployability benefits and to which his constitutional and APA challenges relate. See Barrera v. Gober...

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