Sucic v. McDonald
| Decision Date | 16 February 2016 |
| Docket Number | 2014-7134 |
| Parties | JACK SUCIC, Claimant-Appellant v. ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee |
| Court | U.S. Court of Appeals — Federal Circuit |
NOTE: This disposition is nonprecedential.
Appeal from the United States Court of Appeals for Veterans Claims in No. 13-0158, Judge William Greenberg.
KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.
RENEE GERBER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHNER, JR., MARTIN F. HOCKEY, JR.; DAVID J. BARRANS, BRIAN D. GRIFFIN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before MOORE, REYNA, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge REYNA.
Jack Sucic, a veteran, seeks an early effective date for a grant of service-connected disability compensation. The U.S. Court of Appeals for Veterans Claims determined that the Board of Veterans' Appeals did not err in denying Mr. Sucic's request for an earlier effective date. For the reasons set forth below, we reverse the determination of the U.S. Court of Appeals for Veterans Claims and remand for further proceedings.
Mr. Sucic served honorably in the United States Marine Corps from July 1973 to October 1984. In June 1992, Mr. Sucic filed a claim for a nervous condition and post-traumatic stress disorder ("PTSD"). The Department of Veterans Affairs' ("VA") regional office denied the PTSD claim in December 1992. J.A. 14-15. Three months later, in March 1993, Mr. Sucic submitted a statement via VA Form 21-4138, informing the VA that he had been receiving treatment for an ongoing nervous condition since March 1985. J.A. 16. In that submission, Mr. Sucic noted that he had received treatment at a VA medical center in Columbia, Missouri. Mr. Sucic did not formally appeal the regional office's 1992 decision on his PTSD condition, and that decision became final in December 1993.
Subsequent to December 1993, Mr. Sucic obtained the assistance of a non-attorney veterans support group and appealed a regional office decision concerning several claims for compensation that were unrelated to his PTSD claim. In the appeal, Mr. Sucic also raised the PTSD service connection issue. In a July 1995 decision, the Board of Veterans' Appeals (the "Board") referred the PTSD issue to the regional office for "appropriate action."
The veteran has further contended that service connection is warranted for post-traumatic stress disorder (PTSD). Service connection for this disability was denied in a December 1992 rating action with notice in January 1993 and no disagreement received thereafter. Such issue was not developed for appellate review and no action by the Board is warranted. It is referred to the Department of Veterans Affairs (VA) Regional Office (RO) for appropriate action.
J.A. 18-22 (emphases added). The Board also instructed two specific tasks to the regional office: obtain copies of the treatment records from the medical center in Columbia, Missouri, and afford Mr. Sucic an opportunity to receive a surgical exam for a non-combat shrapnel wound.1 The Board informed Mr. Sucic that "[n]o action is required of the veteran or his representative until they receive further notice." J.A. 20-21. The regional office, however, took no further action on the referral of the PTSD claim, and Mr. Sucic did not receive notice or otherwise hear from the regional office about the referral.
In January 2003, Mr. Sucic filed another statement in support of his PTSD claim. After reviewing the statement, the VA considered the claim reopened with new evidence. In 2008, the VA awarded Mr. Sucic a disability rating of 100% for his PTSD with an effective date of January 2003. J.A. 3.
In 2008, Mr. Sucic filed a claim for an earlier effective date for his PTSD disability, which resulted in appeals before the Board and the U.S. Court of Appeals for Veterans Claims (the "Veterans Court"). In the appeal before the Veterans Court, Mr. Sucic and the government filed a joint motion to remand on grounds that the Board had failed to adequately address whether the PTSD claim was left pending by the 1995 referral. J.A. 3.
On remand, Mr. Sucic argued that the effective date for his PSTD disability should be 1992 because his statement submitted on VA Form 21-4138 in March 1993 triggered his first 1992 claim for a PTSD disability. Mr. Sucic also argued that the Board's 1995 referral recognized the significance of his March 1993 submission. The Board rejected those arguments:
The Board has reviewed the record but finds no document during the intervening period between the final December 1992 [regional office] decision and the date the [regional office] received the Veteran's petition to reopen his claim on January 24, 2003, which could be construed as either an informal or formal claim for service connection for PTSD or any other diagnosed psychiatric disorder.
J.A. 78. The Board concluded that the reference to PTSD in its 1995 referral was "misplaced" and that the regional office had "reviewed the issue, determined that there was no claim and, therefore, had no action to take." J.A. 76.
On September 5, 2012, the Board issued its remand determination and denied Mr. Sucic's entitlement to an earlier effective date on grounds that he failed to submit evidence of PTSD within the appeal period subsequent to the regional office's 1992 decision. J.A. 66-81.
Mr. Sucic appealed the Board's remand determination to the Veterans Court on January 16, 2013. J.A. 1-5. On appeal, Mr. Sucic argued that a referral by the Board necessarily meant that he had submitted a proper claim in 1995, and that the VA's inaction on his pending claim amounted to a procedural error. Mr. Sucic asserted that because the VA committed procedural error, his claim is not final and is not adjudicated until the VA corrects the procedural error. AG v. Peake, 536 F.3d 1306, 1311 (Fed. Cir. 2008). The Veterans Court disagreed, finding that because Mr. Sucic had not submitted new or material evidence before 2003, the Board's decision was final and there was no claim pending. The Veterans Court also determined that under 38 C.F.R. § 19.9 (1995), the regional office was not required to adjudicate the Board's referral because that section governed "remands" and not referrals.
Mr. Sucic appeals. We have jurisdiction under 38 U.S.C. §§ 7292(a), (c).
Our standard of review in this case is limited. We review de novo legal determinations by the Veterans Court. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991). We have jurisdiction over all relevant questions of law, including interpretations of constitutional and statutory authority. 38 U.S.C. § 7292(d)(1). We set aside any decision by the Veterans Court that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or without observance of procedure required by law. Id. Except as to constitutional issues, we cannot review challenges to a factual determination or challenges to a law or regulation as applied to the facts of a particular case. Id. § 7292(d)(2).
On appeal, Mr. Sucic argues that the referral by the Board obligated the VA to extend Mr. Sucic certain procedural safeguards, including a duty to investigate the claim, review evidence, and make a determination on the claim. See 38 C.F.R. § 19.9 (1995). Mr. Sucic argues that the regional office's inaction following the referral amounted to procedural error because no action was taken and his claim was left pending with no adjudication. Finally, Mr. Sucic argues that the VA's instruction for him not to take any action until he heard back from the VA prevented him until 2003 from submitting any additional evidence in support of an earlier effective date, and is further indication of an open, pending claim.
The government concedes that the regional office did not review or consider Mr. Sucic's referred PTSD claim until January 2003. The government asserts that the regional office took no action because there was no evidence in the record of a pending PTSD claim.
The government argues that Mr. Sucic confuses the duties assumed by the VA pursuant to a "remand," as opposed to a "referral," by the Board. The government asserts that 38 C.F.R. § 19.9 (1995) applies to remands only and not referrals. As such, the regulation requires the Board to specify the action to be taken by the regional office on remand, but it is silent as to any procedural safeguards under referrals.
We hold that the VA committed procedural error by failing to take action on the claim that was referred to it by the Board. The failure denied Mr. Sucic an opportunity to develop the record, and the failure left pending and un-adjudicated his claim for an earlier effective date.
We find persuasive Mr. Sucic's arguments that the referral by the Board raised procedural safeguards that the VA failed to implement. In 2011, the VA amended § 19.9, leaving the provision on remands materially the same, while adding a new subsection for referrals:
Referral. The Board shall refer to the agency of original jurisdiction for appropriate consideration and handling in the first instance all claims reasonably raised by the record that have not been initially adjudicated by the agency of original jurisdiction, except for claims over which the Board has original jurisdiction.
38 C.F.R. § 19.9(b) (2011) (emphasis added). The plain language of the new regulation recognizes that a referral is made to address pending un-adjudicated claims and requires the Board to direct the regional...
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