Smith v. Brown, No. 93-7043

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtBefore RICH, MICHEL, and CLEVENGER; CLEVENGER
Citation35 F.3d 1516
PartiesWilliam A. SMITH, Claimant-Appellee, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellant.
Docket NumberNo. 93-7043
Decision Date12 August 1994

Page 1516

35 F.3d 1516
William A. SMITH, Claimant-Appellee,
v.
Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellant.
No. 93-7043.
United States Court of Appeals,
Federal Circuit.
Aug. 12, 1994.

William D. Mallard, Jr., Mallard & Minor, Atlanta, GA, argued, for claimant-appellee.

Jeri Kaylene Somers, Attorney, Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued, for respondent-appellant. With her on the brief were Stuart

Page 1517

E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Also on the brief were Donald E. Zeglin and Nicole Sideris, Dept. of Veterans Affairs, Washington, DC, of counsel.

Gershon M. Ratner and Roberta L. Valente, Nat. Veterans Legal Services Project, Washington, DC, were on the brief, for amicus curiae, The American Legion.

Before RICH, MICHEL, and CLEVENGER, Circuit Judges.

CLEVENGER, Circuit Judge.

The Secretary of Veterans Affairs appeals the decision of the United States Court of Veterans Appeals (Veterans Court) in Smith v. Principi, 3 Vet.App. 378 (1992), holding that otherwise final decisions of the Board of Veterans Appeals (Board) are subject to collateral review for "clear and unmistakable error" (CUE) under 38 C.F.R. Sec. 3.105(a) (1993). Because the Veterans Court misinterpreted Sec. 3.105(a), we reverse.

I

We have jurisdiction over this appeal by virtue of 38 U.S.C. Sec. 7292 (Supp. IV 1992), which vests this court with the limited authority to review Veterans Court decisions on pure questions of law, see id. Sec. 7292(c) (i.e., "any challenge to the validity of any statute or regulation or any interpretation thereof"), and those factual or mixed questions that raise constitutional issues, see id. Sec. 7292(d)(2). We may judge this appeal notwithstanding the pending remand ordered by the Veterans Court, because this remand order constitutes a final and appealable judgment. See Travelstead v. Derwinski, 978 F.2d 1244, 1249 (Fed.Cir.1992) (citing Sullivan v. Finkelstein, 496 U.S. 617, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990)).

Our standard of review is set out at Sec. 7292(d)(1). That provision commands that this court "shall decide all relevant questions of law" and "hold unlawful and set aside any regulation or any interpretation thereof ... relied upon in the decision of the Court of Veterans Appeals" held to be, among other things, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The only issue in this appeal is whether Sec. 3.105(a) subjects otherwise final Board decisions to review for CUE and, if so, whether the regulation is unlawful for conflict with the statutes governing the finality of Board decisions. This is a question of legal interpretation we review de novo, see Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991), applying the two-step test articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 866, 104 S.Ct. 2778, 2781-82, 2793, 81 L.Ed.2d 694 (1984), because our review of Veterans Court judgments entails the review of underlying agency action.

II

The question we face lies near the end of a long trail that one veteran has followed seeking benefits for various serious medical ailments. William A. Smith served on active duty from February 1952 to January 1956. Smith's medical records reveal treatment from 1956 through the 1980s by Veterans Administration (VA) hospital physicians and private physicians for, among other things, back disability and cervical spine disability. In March 1980, Smith applied to the VA Regional Office (RO) in Atlanta, Georgia (an agency of original jurisdiction (AOJ)) for benefits, claiming entitlement to service connection for a back injury. Service connection was subsequently established for residuals of a back injury, with lumbosacral strain and lower back syndrome, degenerative disc disease with spondylosis. Smith's adverse health conditions were rated at 60% disabling and Smith became entitled to commensurate benefits. In November 1980, Smith resigned his job as a maintenance employee at Savannah State College because of his back condition. Thereafter, Smith returned to the RO, claiming a total disability rating based on individual unemployability by reason of his service connected disability. Following a hearing before a rating board in July 1982, Smith's claim for total disability was denied. Smith appealed that decision to the Board.

The Board on July 1, 1983, affirmed the rating board's decision on Smith's total disability claim. At subsequent rating board hearings, Smith complained of continuing back problems, as well as multiple joint pains

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in the shoulder, neck, knees, and hands. Those ailments culminated in a claim of entitlement to service connection for disabilities in his knee, spine, middle back, shoulder and hands and arthritis of the joints. Smith's claim was denied by the RO, but on appeal to the Board was remanded in April 1986 to the RO for further development of the medical evidence. After review of the additional evidence, first the RO and then the Board on August 8, 1986, again denied Smith's claim for service connection to the asserted disabilities. On August 18, 1986, Smith requested reconsideration by the Board of its August 8 decision on the grounds that it contained error. The Board granted Smith's request for reconsideration. In an opinion and decision dated July 10, 1987, the Board examined the alleged errors cited by Smith and concluded that none constituted reversible error. In rejecting Smith's allegations of error, the Board noted that reconsideration of its decisions may be accorded at any time on request by the veteran alleging obvious error of fact or law in the Board decision, or on the Board's own motion to correct an obvious error in the record.

With respect to his cervical spinal and shoulder disabilities, Smith again attempted to establish service connection in 1988 and 1989, claiming that new and material evidence established the necessary service connection. The RO and Board, however, concluded that Smith had failed to assert any such new and material evidence. Consequently, on June 20, 1989, the Board denied Smith's request to reopen the spine and shoulder disability claims earlier decided finally by the Board on July 10, 1987.

On September 6, 1989, Smith again applied to the RO to reopen his twice denied claim for service connection for his cervical spine disabilities and his once denied claim for a total disability rating based on individual unemployability. On January 4, 1990, the RO concluded that Smith had failed to adduce any new and material evidence to establish a relationship between his service connected lower back disability, rated at 60%, and a cervical spine condition. The RO also concluded that Smith's service connected disability did not render him unemployable. Smith appealed these two adverse decisions to the Board. His appeal also contended that the Board had committed CUE in its June 20, 1989, decision denying Smith's request to reopen his previously denied claim to service connection for the cervical spine disability. The CUE alleged was the Board's failure to appreciate the meaning of testimony given by a doctor at a RO hearing which Smith contended would establish the necessary service connection.

The Board on March 11, 1991, affirmed the RO's denial of Smith's claim to enhanced disability rating on account of the cervical spine ailment and his claim to a 100% disability rating due to the asserted unemployability that the lower back ailment alone had caused. The Board characterized Smith's allegation of CUE as an assertion of obvious error, such as Smith had alleged in his formal request for reconsideration of the Board's August 8, 1986, decision. But since Smith had made no formal request for reconsideration because of obvious error, the Board ruled that the allegations of error in its June 20, 1989, decision were not properly before it and rendered no decision thereon.

Smith appealed the March 11, 1991, decision of the Board to the Veterans Court. In a memorandum decision, Associate Judge Steinberg concluded that Smith's cervical spine disability claim, to the extent it sought an increased disability rating for his previous service connected disability, was not properly before the Veterans Court because it had not been raised as such before the Board. Smith, 3 Vet.App. at 380. As for the cervical spine disability claim alone, the Veterans Court affirmed the Board's denial because Smith had adduced no "new and material evidence" to warrant reopening of the claim denied in the Board's June 20, 1989, decision. Id. at 380-81. The Veterans Court determined that the Board erred, however, in failing to consider all the relevant evidence on Smith's claim to total disability on account of service connected disability. Id. at 380-81. Remand was also ordered regarding Smith's contention that the Board erred in 1991 by not adjudicating his contention that the Board's June 20, 1989, decision was based on CUE. Id. at 381. The Veterans Court held that the Board is required under 38 C.F.R. Sec. 3.105(a) (1994) to adjudicate contentions

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that it has committed CUE in rendering previous decisions which have since become final. Id. The Secretary petitioned for reconsideration of the memorandum decision but reconsideration was denied by a panel of the Veterans Court on December 23, 1992. The Secretary then appealed to this court.
III

The Veterans Court's discussion and resolution of the question now on appeal is contained in a single paragraph of its decision:

However, the veteran clearly did raise to the Board a claim that the Board in 1989 had committed clear and unmistakable error by failing then to consider relevant medical evidence of record supporting his claim for service connection for the cervical spine disability.... Therefore, the Board was required to adjudicate...

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42 practice notes
  • Samish Indian Nation v. US, No. 04-5042.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 19 Agosto 2005
    ...111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (court should interpret remedial statute broadly to advance its remedial purpose); Smith v. Brown, 35 F.3d 1516, 1525 (Fed.Cir.1994) ("It is of course true that courts are to construe remedial statutes liberally to effectuate their purposes."), superse......
  • Cook v. Principi, No. 00-7171.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 20 Diciembre 2002
    ...10. Before the enactment of section 7111, the concept of CUE with respect to Board decisions was not recognized. See Smith v. Brown, 35 F.3d 1516, 1526-27 (Fed.Cir.1994) ("[T]he Secretary correctly interpreted CUE review authority in 38 C.F.R. § 3.105(a) as relating only to review of AOJ ad......
  • Disabled American Veterans v. Gober
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 8 Diciembre 2000
    ...See Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999). A claim of CUE has been governed by regulation since 1928. See Smith v. Brown, 35 F.3d 1516, 1524-25 (Fed. Cir. 1994) (providing a history of the evolution of regulations describing CUE review). The regulation currently codified at 3......
  • Adams v. United States, No. 11-783C
    • United States
    • Court of Federal Claims
    • 21 Agosto 2014
    ...Supreme Court in Russello applies to interpretation of the VASRD as much as to interpretation of statutes, and quotes from Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994), which states "canons of construction of course apply equally to any legal text and not merely to statutes." See als......
  • Request a trial to view additional results
42 cases
  • Samish Indian Nation v. US, No. 04-5042.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 19 Agosto 2005
    ...111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (court should interpret remedial statute broadly to advance its remedial purpose); Smith v. Brown, 35 F.3d 1516, 1525 (Fed.Cir.1994) ("It is of course true that courts are to construe remedial statutes liberally to effectuate their purposes."), superse......
  • Cook v. Principi, No. 00-7171.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 20 Diciembre 2002
    ...10. Before the enactment of section 7111, the concept of CUE with respect to Board decisions was not recognized. See Smith v. Brown, 35 F.3d 1516, 1526-27 (Fed.Cir.1994) ("[T]he Secretary correctly interpreted CUE review authority in 38 C.F.R. § 3.105(a) as relating only to review of AOJ ad......
  • Disabled American Veterans v. Gober
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 8 Diciembre 2000
    ...See Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999). A claim of CUE has been governed by regulation since 1928. See Smith v. Brown, 35 F.3d 1516, 1524-25 (Fed. Cir. 1994) (providing a history of the evolution of regulations describing CUE review). The regulation currently codified at 3......
  • Adams v. United States, No. 11-783C
    • United States
    • Court of Federal Claims
    • 21 Agosto 2014
    ...Supreme Court in Russello applies to interpretation of the VASRD as much as to interpretation of statutes, and quotes from Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994), which states "canons of construction of course apply equally to any legal text and not merely to statutes." See als......
  • Request a trial to view additional results

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