McGee v. Peake

• Decision Date: 08 January 2008
• Docket Number: No. 2007-7071.,2007-7071.
• Citation: 511 F.3d 1352
• Parties: Robert L. McGEE, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

511 F.3d 1352

Robert L. McGEE, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.

No. 2007-7071.

United States Court of Appeals, Federal Circuit.

January 8, 2008.

Barbara J. Cook, of Cincinnati, OH, argued for claimant-appellant.

James W. Poirier, 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, Acting Attorney General, Jeanne E. Davidson, Director, and Mark A. Melnick, 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 MAYER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and GAJARSA, Circuit Judge.

Opinion for the court filed by Circuit Judge GAJARSA. Opinion concurring in the result filed by Senior Circuit Judge FRIEDMAN.

GAJARSA, Circuit Judge.

Robert L. McGee ("McGee") appeals from a decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") affirming the ruling of the Board of Veterans' Appeals ("Board") that under 38 U.S.C. § 5110(a), McGee is not entitled to an effective date of service connection earlier than April 15, 1999. McGee v. Nicholson, 20 Vet.App. 472 (2006). The issue before the Court is one of statutory interpretation, namely, whether the Veterans Court correctly determined that 10 U.S.C. § 1218 is not an "applicable law" within the meaning of 38 U.S.C. § 7104(a). Because we conclude that the Veterans Court erred in its interpretation of § 7104(a), we reverse and remand for further proceedings.

I. BACKGROUND

McGee is a Vietnam veteran who served on active duty in the U.S. Marine Corps from May 1968 until September 1970. While on active duty, he was diagnosed with severe sarcoidosis (a lung disorder), and in August 1970, a physical evaluation board found him unfit for duty and rated his disability at thirty percent. In September 1970, he was released from active duty and placed on the temporary disability retired list.¹ McGee testified before the Board that his temporary retirement benefits ceased in 1976, at which time he was not advised of a need to file a formal claim with the Department of Veterans Affairs ("VA") to obtain service connection for his disability.

On April 15, 1999, McGee wrote a letter to a VA regional office ("RO") asserting that his lung disorder had been determined to be service connected and that he had been discharged with a thirty percent disability rating. Although his lungs were still bothering him, his benefits had ceased. In February 2001, the RO awarded him service connection for sarcoidosis and assigned a disability rating of thirty percent, effective July 17, 2000. McGee's claim went through several appeals within the RO, and the RO ultimately awarded him service connection with a one hundred percent disability rating, effective April 15, 1999. McGee appealed the decision of the RO to the Board on the ground that he was entitled to an effective date earlier than April 15, 1999.

The Board found that there was no evidence in the record that the VA had received a written claim from McGee for service connection for sarcoidosis prior to April 15, 1999 and thus denied his request for an earlier effective date. See 38 U.S.C. § 5110(a) (stating that subject to certain exceptions not at issue here, the date on which a claim is received is the earliest date for which service connection can be granted). As part of its decision, the Board stated:

The file shows that by correspondence, rating decisions, and the statement of the case, the RO has informed the veteran of the evidence necessary to substantiate his claim. Pertinent records are on file. The law, not the evidence, governs the outcome of this case. The Board finds that the notice and duty to assist provisions of the law are met. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

(emphasis added). McGee appealed the Board's ruling to the Veterans Court. McGee, 20 Vet.App. at 472.

On appeal to the Veterans Court, McGee argued that the Board erroneously issued its decision on a less than fully developed record because it failed to consider all applicable provisions of law as required by 38 U.S.C. § 7104. Section 7104(a) states: "Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law." McGee argued that 10 U.S.C. § 1218 is an applicable provision of law that the Board was required to consider before it reached its decision. See McGee, 20 Vet.App. at 474. Section 1218 states:

A member of an armed force may not be discharged or released from active duty because of physical disability until he— (1) has made a claim for compensation, pension, or hospitalization, to be filed with the Department of Veterans Affairs, or has refused to make such a claim; or (2) has signed a statement that his right to make such a claim has been explained to him, or has refused to sign such a statement.

10 U.S.C. § 1218(a).² The Veterans Court rejected McGee's argument and held that the Board was not required to consider 10 U.S.C. § 1218 because "[it] is not an applicable provision of law within the meaning of 38 U.S.C. § 7104(a)." McGee, 20 Vet. App. at 475. The Veterans Court described its decision as "a determination as to whether the Board complied with its statutory obligation in light of its failure to consider a particular law not found within title 38 of the U.S.Code." Id. at 475 n. 3. It further reasoned that "§ 1218 imposes no obligation upon the Secretary of Veterans Affairs and fails to provide for any remedy in the veterans-benefits context." Id. at 475. McGee timely appealed to this Court.

II. DISCUSSION

A. Standard of Review

The jurisdiction of this court to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292; Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). Under § 7292(c), we have "exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation, or any interpretation thereof" by the Veterans Court. See also Forshey, 284 F.3d at 1338. Constitutional and statutory interpretations by the Veterans Court are reviewed de novo. Santana-Venegas v. Principi, 314 F.3d 1293, 1296 (Fed.Cir. 2002). This court is limited by its jurisdictional statute and, absent a constitutional issue, may not review challenges to factual determinations or challenges to the application of a law or regulation to facts. 38 U.S.C. § 7292(d)(2). Because McGee challenges the Veterans Court's interpretation of a statute, we have jurisdiction pursuant to 38 U.S.C. § 7292(c).

B. Analysis

McGee submits that the Veterans Court upheld the Board's decision under an erroneous interpretation of "applicable" as used in 38 U.S.C. § 7104(a). He argues that the plain meaning of "applicable" is "relevant." Because 10 U.S.C. § 1218 indicates that McGee's service personnel file may contain evidence that tends to establish or disprove his claim to an earlier service connection date, he submits that § 1218 is relevant to his claim and thus an applicable law that the Board is required to consider. Rather than dispute the appropriate interpretation of "applicable," the Secretary characterizes McGee's appeal as a challenge under 38 U.S.C. § 7104(d)(1) to the Board's failure to discuss § 1218 in its decision.³ At oral argument, the Secretary further posited that § 1218 is not relevant because its terms do not require the Marine Corps to maintain records that would be sufficient to prove McGee's claim.

When a statute is at issue, we begin with the statutory language. Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) ("Statutory interpretation begins with the language of the statute."); Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed.Cir.2007). The statute's plain meaning is derived from its text and its structure. Alexander v. Sandoval, 532 U.S. 275, 288, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001); Norfolk Dredging Co. v. United States, 375 F.3d 1106, 1110 (Fed.Cir.2004). "If the statutory language is clear and unambiguous, the inquiry ends with the plain meaning." Myore, 489 F.3d at 1211. Moreover when a statute is ambiguous, "interpretive doubt is to be resolved in the veteran's favor." Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994); Padgett v. Nicholson, 473 F.3d 1364, 1368 (Fed.Cir. 2007).

The plain meaning of "applicable" begins with its "ordinary, contemporary, common meaning." Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). This ordinary meaning may be properly informed by the use of dictionaries. See United States v. Rodgers, 466 U.S. 475, 479, 104 S.Ct. 1942, 80 L.Ed.2d 492 (1984) (using dictionary to assess "natural, nontechnical reading of the statutory language"); Telecare Corp. v. Leavitt, 409 F.3d 1345, 1353 (Fed.Cir.2005) ("[T]he plain meaning of a statute is to be ascertained using standard dictionaries in effect at the time of the statute's enactment."). The adjective "applicable," defined in part as "capable of being applied; having reference," derives from the verb "apply." 1 Oxford English Dictionary 575 (2d ed. 1998). The primary definition of "apply" is "to put a thing into practical context with another." 1 Oxford English Dictionary 576. According to these definitions, the ordinary, contemporary, common meaning of "applicable provision of law" is a provision that has reference to, or places something into practical context with, the Board's decision. Thus, rather than require a specific legal result, such as the imposition of an obligation on the Secretary or the creation of a remedy for a veteran claimant, a provision of law is applicable to the Board's decision if its terms have some practical...