Pierce v. Principi

• Decision Date: 14 February 2001
• Citation: 240 F.3d 1348
• Parties: (Fed. Cir. 2001) DOUGLAS F. PIERCE, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee. 00-7060 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1348

240 F.3d 1348 (Fed. Cir. 2001)

DOUGLAS F. PIERCE, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

00-7060

United States Court of Appeals for the Federal Circuit

DECIDED: February 14, 2001

Appealed from: United States Court of Appeals for Veterans Claims

[Copyrighted Material Omitted]

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.

Mark L. Josephs, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent- appellee. With him on the brief were David M. Cohen, Director; and Todd M. Hughes, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel; and Martie S. Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

Chief Judge Kenneth B. Kramer

Before LOURIE, SCHALL, and BRYSON, Circuit Judges.

SCHALL, Circuit Judge.

Douglas F. Pierce appeals the September 21, 1999 decision of the United States Court of Appeals for Veterans Claims that affirmed a 1998 decision of the Board of Veterans' Appeals ("Board"). Pierce v. West, No. 98-764 (Vet. App. Sep. 12, 1999) ("Pierce"). The Board concluded that there was no clear and unmistakable error ("CUE") in decisions issued by the Department of Veterans Affairs Regional Office ("RO") in 1945, 1946, 1948, and 1949. In re Pierce, No. 96-10 226 (Mar. 27, 1998) ("1998 Board Decision"). The Court of Appeals for Veterans Claims determined that the evidence of record at the time the RO decisions were rendered supported the decisions and that the RO had complied with applicable statutes and regulations in rendering the decisions. Pierce, slip op. at 5-6. The court therefore affirmed the Board decision that there was no CUE in the RO decisions. Id. at 7.

Mr. Pierce raises several issues on appeal. With regard to the RO decision issued in 1945 (the "1945 RO Decision"), he argues that the court should have considered evidence that was not before the RO when it determined whether the decision contained CUE. He also argues that the court's application of a presumption of regularity to the RO's actions violated 38 U.S.C. § 5107(b). Mr. Pierce argues further that the court abused its discretion by failing to properly exercise its jurisdiction over the Board decision upholding the 1945 RO Decision. With regard to the RO decision issued in 1948 (the "1948 RO Decision"), Mr. Pierce argues that the court misinterpreted Paragraph 13 of the applicable version of the Schedule for Rating Disabilities when it determined that the decision complied with that paragraph. Mr. Pierce does not challenge the court's decision insofar as it relates to the RO decisions issued in 1946 and 1949.

We discern no error in the court's affirmance of the Board decision upholding the 1945 RO Decision and, therefore, affirm that portion of the court's decision. Because we lack jurisdiction over Mr. Pierce's appeal of the court's decision with respect to the 1948 RO Decision, we dismiss that portion of the appeal. We therefore affirm-in-part and dismiss-in-part.

BACKGROUND

Mr. Pierce served on active duty in the United States Marine Corps from December of 1942 until October 6, 1945. In October of 1944, he suffered a gunshot wound to the head. Upon separation, he was found physically qualified for discharge.

In 1945, Mr. Pierce submitted a claim for disability benefits for residual effects of the gunshot wound. In the 1945 RO Decision, the RO awarded Mr. Pierce service-connection for residuals of the wound at a 50% disability rating. In 1946, Mr. Pierce was hospitalized and underwent surgery to treat symptoms associated with the gunshot wound. In a decision issued in 1946, the RO assigned Mr. Pierce a 40% disability rating for residuals of the wound and a 10% disability rating for the loss of part of his skull. In 1947, Mr. Pierce underwent several physical and psychiatric examinations. In the 1948 RO Decision, which was issued after these examinations, the RO assigned Mr. Pierce a 30% disability rating for residuals of the gunshot wound and a 10% disability rating for the loss of part of his skull. Thereafter, Mr. Pierce underwent further physical and psychiatric examinations. In a decision issued in 1949, after these further examinations, the RO maintained the same ratings that had been assigned in the 1948 RO Decision.

In 1991, Mr. Pierce filed a claim for retroactive increased benefits, asserting that the 1945, 1946, 1948, and 1949 RO Decisions contained CUE. When the RO denied the claim, Mr. Pierce appealed the denial to the Board. The Board determined that the decisions did not contain CUE, and affirmed the RO decision denying the CUE claim. 1998 Board Decision, slip op. at 20. Mr. Pierce appealed the Board decision to the Court of Appeals for Veterans Claims, which affirmed the Board's determination as to all four of the challenged RO decisions.

DISCUSSION

I.

Our jurisdiction with respect to a decision of the Court of Appeals for Veterans Claims is limited by statute. We can review the validity of any statute or regulation, or any interpretation thereof, upon which the court relied in making its decision. 38 U.S.C. § 7292(a) (Supp. IV 1998). However, we do not have jurisdiction to review a factual determination or an application of a law or regulation to the facts of a case unless a constitutional issue is presented. 38 U.S.C. § 7292(d)(2) (1994). The standard of review that we apply to the court's decisions also is defined by statute. We must set aside any interpretation of a law or regulation that we find to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 38 U.S.C. § 7292(d)(1) (Supp. IV 1998).

As noted above, Mr. Pierce raises four issues on appeal. With respect to the 1945 RO Decision, he argues that the Court of Appeals for Veterans Claims misinterpreted 38 U.S.C. § 5109A(a) and 38 C.F.R. § 3.105(a) when it determined that, in considering whether the decision contained CUE, it could not consider evidence that was not of record when the RO decision was rendered. He also argues that the court's application of a presumption of regularity to the actions behind the 1945 RO Decision was contrary to 38 U.S.C. § 5107(b). Finally, Mr. Pierce argues that the court abused its discretion by failing to comply with its statutory obligation to determine whether the Board decision upholding the 1945 RO Decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. With respect to the 1948 RO Decision, Mr. Pierce argues that the court misinterpreted Paragraph 13 of the 1945 version of the Schedule for Rating Disabilities when it determined that the 1948 Decision complied with that paragraph. We address each of these issues in turn.

II.

38 U.S.C. § 5109A(a) and 38 C.F.R. § 3.105(a)

The 1945 RO decision awarded Mr. Pierce a temporary disability rating of 50%. Before the Court of Appeals for Veterans Claims, Mr. Pierce argued that this decision contained CUE because he should have been awarded a 100% disability rating. Specifically, Mr. Pierce argued that, in 1945, he was going to be engaged in a rehabilitative activity that prevented the pursuit of gainful occupation, thus bringing him under the scope of the guidelines for the award of a temporary disability rating of 100%. The court refused to consider evidence of Mr. Pierce's rehabilitation program because it was not in the record when the 1945 RO decision was rendered. Pierce, slip op. at 5. The court citied Russell v. Principi, 3 Vet. App. 310 (1992) (en banc), for the proposition that CUE claims must be based on evidence that was of record when the challenged decision was made. Pierce, slip op. at 3.

Mr. Pierce argues that the court misinterpreted 38 U.S.C. § 5109A(a) and 38 C.F.R. § 3.105(a), and that these provisions do not limit the type of evidence that can be considered when a RO decision is being evaluated for CUE. We have jurisdiction over this issue because it involves a challenge to the court's interpretation of a statute and regulation that the court relied upon in making its decision. See 38 U.S.C. § 7292(a); Pierce, slip op. at 3-4.

Section 5109A(a) provides, "A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised." 38 U.S.C. § 5109A (Supp. IV 1998). Mr. Pierce argues that this language does not in any way limit the evidence that can be considered to evidence that was before the RO when the decision was rendered. Therefore, he contends, the term "evidence" should be given its plain meaning, which is "any species of proof," and which includes evidence that was not of record at the time of the challenged decision.

Mr. Pierce cites the legislative history of § 5109A in support of his interpretation of the statute. He argues that Congress stated that § 5109A was intended to codify the existing regulation, 38 C.F.R. § 3.105(a), which also lacks any language limiting the evidence that can be considered. Mr. Pierce acknowledges that the legislative history makes reference to Russell, where the Court of Appeals for Veterans Claims (at the time named the "Court of Veterans Appeals") held that CUE claims must be based on evidence that was of record when the decision at issue was rendered. He asserts, however, that the legislative history does not discuss or adopt this aspect of Russell. Mr. Pierce cites the statements of Representative Evans in the floor debate of the legislation as indicating that there were two purposes behind § 5109A: (1) to permit the correction of undebatable errors and (2) to permit the correction of errors that resulted from the RO's ignoring or wrongfully evaluating the evidence before him. Mr. Pierce argues that any evidence, including evidence that was not of...