Sims v. Shinseki

• Decision Date: 13 August 2009
• Docket Number: No. 2008-7082.,2008-7082.
• Parties: James D. SIMS, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

578 F.3d 1332

James D. SIMS, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2008-7082.

United States Court of Appeals, Federal Circuit.

August 13, 2009.

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

Tara J. Kilfoyle, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Jeanne E. Davidson, Director, Todd M. Hughes, Assistant

Director, and Hillary A. Stern, Senior Trial Counsel. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Martie S. Adelman, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Before SCHALL, GAJARSA, and DYK, Circuit Judges.

DYK, Circuit Judge.

James D. Sims ("Sims") appeals the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") affirming the denial of service connection for an acquired psychiatric disorder. This case presents the question of what procedures the Department of Veterans Affairs ("VA") must follow when the Board of Veterans' Appeals ("Board") directs the VA regional office ("RO") to reopen a case for new and material evidence. The Veterans Court held that the RO could issue a supplemental statement of the case ("SSOC") if service connection is denied. We affirm.

BACKGROUND

Sims served on active duty in the United States Army from November 1974 to July 1977. In April 1989, he filed a claim for service connection for a psychiatric disorder, which was denied by the RO in a July 1989 rating decision. Sims did not file a Notice of Disagreement ("NOD") and that decision became final.

In June 1991, Sims requested that the VA reopen his claim on grounds of new and material evidence. In December 1991, the RO denied the request to reopen on the ground that no new and material evidence had been submitted. After various interim proceedings before the RO, Sims filed an NOD, and this triggered an October 1993 Statement of the Case ("SOC"), in which the RO reiterated its conclusion that no new and material evidence had been submitted. Sims appealed to the Board in February 1994. Thereafter, Sims on several occasions submitted additional evidence in support of his motion to reopen his claim based on new and material evidence, and the Board and the Veterans Court remanded to the RO.

Eventually, in a November 2002 decision the Board found that new and material evidence—including additional service medical records and service personnel records, non-VA and VA medical records, testimony from the veteran, and statements from his sister and his ex-wife—had been submitted, sufficient to reopen Sims's claim for service connection for an acquired psychiatric disorder. The Board initially stated that it would obtain Sims's service medical records to review them for evidence of paranoia while Sims was in service. However, in October 2003, the Board instead remanded Sims's case to the RO to decide the issue of service connection because of our decision in Disabled American Veterans v. Secretary of Veterans Affairs, where we held that the Board as a general matter may not review evidence in the first instance. See 327 F.3d 1339, 1346-48 (Fed.Cir.2003). The Board directed the RO to develop the record by finding any in-service records of treatment for alcohol abuse and psychiatric treatment. The Board directed the RO, "[a]fter the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto." In re Sims, No. 94-32376, slip op. at 3 (Bd.Vet.App. Oct. 28, 2003) (emphasis added).

In July 2004, the RO denied the claim for service connection and issued an SSOC. In the SSOC, the RO stated that it had requested the evidence from the Womack Army Medical Center in Fort Bragg, North Carolina, as directed by the remand order, and had received a reply from the medical center that "no records were located." J.A. 37. The RO then stated that "there is no evidence showing [Sims] developed a chronic psychiatric disability while [Sims was] on active duty. Additionally, there is no competent evidence showing [Sims] developed a psychosis to a compensable degree within the one year period after [his] discharge from service in July 1977." J.A. 46. Sims filed a request for an immediate transfer of the case to the Board.

Before the Board, Sims argued that the RO's issuance of an SSOC in July 2004 was improper, because under 38 C.F.R. § 19.31(a) the request to reopen and the claim of service connection were separate "issues." Sims also argued that the SSOC failed to comply with the notice requirements of 38 U.S.C. § 5104(a) and 38 C.F.R. § 3.103(b)(1). Additionally, Sims argued that, because the issuance of the SSOC was improper, the Board did not have subject matter jurisdiction over the appeal, and any action on the merits by the Board was improper until Sims received a proper rating decision and an SOC.

In October 2005, the Board affirmed the denial of Sims's claim, finding that "the preponderance of the evidence is against service connection for an acquired psychiatric disorder." In re Sims, No. 94-32376, slip op. at 9 (Bd.Vet.App. Oct. 28, 2005). The Board rejected Sims's jurisdictional arguments because they were based on an "unstated assumption that a determination as to whether there is new and material evidence to reopen a claim and a determination as to whether service connection should be granted on the merits when a previously denied claim is reopened are completely separate matters for jurisdictional purposes." Id. at 10. The Board held that the RO's use of an SSOC was proper based on Bernard v. Brown, 4 Vet. App. 384 (1993), abrogated in part on other grounds by Disabled Am. Veterans, 327 F.3d at 1346-48, and that Sims's arguments were without merit. In re Sims, No. 94-32376, slip op. at 11 (Bd.Vet.App. Oct. 28, 2005). Sims appealed to the Veterans Court.

In December 2007, the Veterans Court affirmed the Board's decision. Sims v. Peake, No. 06-0335, slip op. at 1, 2007 WL 4591256 (Vet.App. Dec. 19, 2007). Sims timely appealed to our court. We have jurisdiction to review the Veterans Court's decision under 38 U.S.C. § 7292.

DISCUSSION

The scope of our review of a Veterans Court decision is limited by statute. See 38 U.S.C. § 7292. However, our jurisdiction does not extend to resolving factual issues, but does extend to determining whether the Veterans Court has made a legal error. Szemraj v. Principi, 357 F.3d 1370, 1372 (Fed.Cir.2004).

A claim for VA benefits is initially decided by an agency of original jurisdiction ("AOJ"), in this case in a rating decision by an RO. See 38 U.S.C. § 7105(b)(1), (d)(1); 38 C.F.R. § 20.3(a). If service connection is denied by the RO, the claimant has one year in which to appeal the RO's decision. 38 U.S.C. § 7105(b)(1), (c). During that one year period and before initiating an appeal, the claimant can submit additional supporting evidence. See 38 C.F.R § 20.302(b)(2).¹ Before the end of that one year period, a claimant can initiate appellate review of the rating decision by filing an NOD with the RO. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.200, 20.300. The NOD is a written communication from the veteran expressing dissatisfaction or disagreement with an adjudicative decision of the VA. 38 C.F.R. § 20.201. After a veteran files an NOD, if the RO does not grant the benefit, the RO must prepare an SOC, "which includes a summary of pertinent evidence in the case, citations to pertinent laws and regulations, a discussion of how those laws and regulations affect the decision, and a summary of the reasons for the decision." Disabled Am. Veterans, 327 F.3d at 1342; see also 38 U.S.C. § 7105(d)(1); 38 C.F.R. § 19.29.

"To complete the appeal to the Board, the claimant is required to file a Substantive Appeal with the AOJ within sixty days from the date the SOC is mailed." Disabled Am. Veterans, 327 F.3d at 1342; see also 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.202. If the Board remands for further evidentiary development, the RO issues an SSOC, and the case is automatically returned to the Board for review. 19 C.F.R. § 19.31(c); 38 C.F.R. § 20.302(c) ("Provided a Substantive Appeal has been timely filed in accordance with paragraph (b) of this section, the response to a Supplemental Statement of the Case is optional and is not required for the perfection of an appeal.").

Here, Sims did not file an NOD with respect to the 1989 rating decision, and that decision became final. In 1991, Sims moved to reopen this claim. Under 38 U.S.C. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." The RO in the first instance determines whether new and material evidence has been submitted. See id. Then, if the RO (or the Board on appeal) determines that the veteran has produced new and material evidence, the case is reopened and the RO "must evaluate the merits of the veteran's claim in light of all the evidence, both new and old." See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991); see also 38 U.S.C. § 7104(a).

While a request to reopen is not a new claim for benefits, it is treated as a new matter distinct from the original claim for VA benefits. The RO therefore issues a new rating decision. The veteran may file an NOD, and the RO then issues an SOC. If additional evidence is submitted to support the motion to reopen, the RO addresses such evidence in an SSOC. Here, the RO determined that Sims had not submitted new and material evidence. Sims filed an NOD, the RO then provided an...