Nolen v. Gober

• Decision Date: 01 August 2000
• Citation: 222 F.3d 1356
• Parties: (Fed. Cir. 2000) SAMMIE G. NOLEN,Claimant-Appellant, v. HERSHEL W. GOBER, Acting Secretary of Veterans Affairs, Respondent-Appellee. 99-7173 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1356

222 F.3d 1356 (Fed. Cir. 2000)

SAMMIE G. NOLEN,Claimant-Appellant, v. HERSHEL W. GOBER, Acting Secretary of Veterans Affairs, Respondent-Appellee.

99-7173

United States Court of Appeals for the Federal Circuit

DECIDED: August 1, 2000

Appealed from: United States Court of Appeals for Veterans Claims Judge John J. Farley, III

Sammie G. Nolen, of Gardendale, Alabama, pro se.

Karla J. de Steuben, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for respondent-appellee. With her on the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director; and Kirk T. Manhardt, Assistant Director. Of counsel were David E. Zeglin, Acting Assistant General Counsel; and Y. Ken Lee, Attorney, Department of Veterans Affairs, of Washington, DC.

Before PLAGER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit Judge.

PLAGER, Circuit Judge.

Veteran Sammie G. Nolen appeals from a decision of the United States Court of Appeals for Veterans Claims, Nolen v. West, 12 Vet. App. 347 (1999), in which the court affirmed the decision of the Board of Veterans' Appeals ("Board") denying Mr. Nolen a service connection for asbestosis, on the grounds that he had failed to state a well grounded claim and that the Board's conclusion to the contrary was harmless error. Because, as we shall explain, the Court of Appeals for Veterans Claims misinterpreted the relevant statute, we vacate the decision of the Court of Appeals for Veterans Claims and remand for further proceedings consistent with this opinion.

BACKGROUND

Sammie Nolen is a World War II combat veteran. Mr. Nolen filed claims in 1991 for an increased disability rating for malaria and for service connections for bronchitis, bronchitis as a residual of exposure to mustard gas, and asbestosis. Only the claim for service connection for asbestosis is currently before us. The Regional Office ("RO") of the Department of Veteran's Affairs ("DVA") found the asbestosis claim to be well grounded, based on Mr. Nolen's current diagnosis of asbestosis and his alleged possible exposure to asbestos on troop transport ships during World War II, in light of the known long delay between exposure to asbestos and the development of asbestosis. The RO then denied the claim on the merits, finding that there was no conclusive evidence that Mr. Nolen had been exposed to asbestos while in service, but that he had been exposed post-service to large amounts of aerosol asbestos during his nearly forty years working as a carpenter for U.S. Steel, in which capacity he had regularly sawed and drilled raw asbestos materials. The RO based this finding on Mr. Nolen's medical reports, in which several of his doctors indicated that he had told them about his work cutting asbestos, even though he subsequently denied that he was exposed during his time at U.S. Steel.

Mr. Nolen appealed to the Board. The Board affirmed the RO's decision. The Board agreed with the RO that the claim was well grounded, and that it should be denied on the merits. The Board addressed Mr. Nolen's references to the Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos Related Diseases (May 11, 1988) (the "DVB Circular"). The Board noted that the DVB Circular discussed levels of in-service exposure to asbestos much greater than that of Mr. Nolen, and it agreed with the RO that extensive evidence supported Mr. Nolen's post-service exposure, while no credible evidence supported his in-service exposure. Mr. Nolen appealed the decision of the Board to the Court of Appeals for Veterans Claims, alleging that the Board had failed to consider properly the DVB Circular, and also that the DVA had not fulfilled its duty to assist him under 38 U.S.C. § 5107(a). ¹

The Court of Appeals for Veterans Claims held that, contrary to the conclusion of the RO and the Board, Mr. Nolen had failed to submit a well grounded claim. The Court of Appeals for Veterans Claims found that he had a medical report with a diagnosis of asbestosis, and it assumed, without deciding, that his own testimony could suffice as evidence of in-service exposure to asbestos. However, in the court's view, Mr. Nolen lacked any medical evidence connecting the two, as required by Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (endorsed by this court in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997)). Because the claim was deemed not well grounded, the Court of Appeals for Veterans Claims declined to address Mr. Nolen's arguments regarding the merits. The Court of Appeals for Veterans Claims went on to hold that the Board's ultimate denial on the merits rendered its error in finding the claim well grounded harmless, pursuant to 38 U.S.C. § 7261(b), and since the claim was not well grounded, remand to the Board was not warranted.

Mr. Nolen now appeals to us the Court of Appeals for Veterans Claims's affirmance of the Board's denial of his asbestosis claim. Mr. Nolen asserts that the Court of Appeals for Veterans Claims misinterpreted the evidentiary requirements for demonstrating that a claim is well grounded under 38 U.S.C. § 5107(a). Moreover, Mr. Nolen asserts that the Court of Appeals for Veterans Claims, once it decided that his claim was not well grounded, should have remanded his case to the Board for further development of the issue, or at least given him a chance to brief the issue before that court. Mr. Nolen further maintains that the Court of Appeals for Veterans Claims's failure to do either violated his due process rights, since he had no prior notice that the Court of Appeals for Veterans Claims was planning to address the requirements of the well grounded claim--both the RO and Board had found the claim well grounded and the Government had not challenged that determination before the Court of Appeals for Veterans Claims.

DISCUSSION

This court has jurisdiction to review a challenge to the validity or interpretation of a statute or regulation relied upon by the Court of Appeals for Veterans Claims. See 38 U.S.C. § 7292. We review independently the Court of Appeals for Veterans Claims's interpretations of statutory provisions and regulations. See 38 U.S.C. § 7292(a), (c). It is our responsibility to decide all relevant questions of law. See 38 U.S.C. § 7292(d). Except to the extent that an appeal presents a constitutional issue, this court may not review challenges to a factual determination or to the application of a law or regulation to the facts of a particular case. See 38 U.S.C. § 7292(d)(2).

The Government, not surprisingly, asserts that Mr. Nolen is challenging only factual determinations or applications of the law to facts. Since such challenges are outside our statutory jurisdiction, the Government argues that we should dismiss Mr. Nolen's case. However, Mr. Nolen is clearly challenging the Court of Appeals for Veterans Claims's interpretation of 38 U.S.C. § 5107(a), and we have jurisdiction to consider such challenges to statutory interpretations. We also note that Mr. Nolen's appeal does not fall afoul of our recent determinations in Smith v. West, 214 F.3d 1331 (Fed. Cir. June 13, 2000) and Belcher v. West, __ F.3d __, 214 F.3d 1335 (Fed. Cir. June 16, 2000) that our jurisdictional statute, 38 U.S.C. § 7292, precludes us from reviewing any issue not "relied upon" by the Court of Appeals for Veterans Claims. Although Mr. Nolen did not argue the issue of well groundedness before the Court of Appeals for Veterans Claims, that court raised the issue sua sponte, and therefore it "relied upon" that issue, bringing it within our jurisdiction. See Smith, 214 F.3d 1332-33; Belcher, 214 F.3d 1336-37.

The present case implicates issues we considered in our recent decision in Hensley v. West, 212 F.3d 1255, 212 F.3d 1255, 2000 WL 572713 (Fed. Cir. 2000). As we noted in Hensley, the well grounded claim requirement serves a 'gatekeeping' function in the claims process--if the veteran presents a well grounded claim to the RO, that triggers the DVA's statutory duty to assist the veteran in perfecting the claim. See id. at 1260-61. We explained how this requirement weeded out claims completely lacking in merit, and analogized it to Federal Rule of Civil Procedure 12(b)(6), which serves a similar function in civil litigation. See id. at 1260-61 (citingRobinette v. Brown, 8 Vet. App. 69, 75 (1995) (making this analogy); King v. Brown, 5 Vet. App. 19, 21 (1993) (same)).

Given its function, it follows that once the well grounded claim requirement has served this gatekeeping/triggering function, it loses its force. Absent a well grounded claim, there is nothing further the DVA need or can do for the claimant. By like token, once the DVA determines that the claim is well grounded, its duty to assist the claimant is established and the claimant is launched in the system. At this point the operation of the well grounded claim requirement is exhausted and need not be further considered.

Thus, in a case such as the present one, in which a claim has been deemed well grounded but...