United States Court of Appeals
for the Federal Circuit
__________________________
CLABON JONES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2009-7128
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 06-2036, Judge Robert N. Davis.
__________________________
Decided: September 14, 2010
__________________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas argued for claimant-appellant.
SCOTT D. AUSTIN, Senior Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent-appellee. With him on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
JONES v. DVA 2
Assistant General Counsel, and JAMIE L. MUELLER, At-
torney, Office of the General Counsel, United States
Department of Veterans Affairs, of Washington, DC.
__________________________
Before RADER, Chief Judge, NEWMAN, and PLAGER, Circuit
Judges.
PLAGER , Circuit Judge.
This is a veterans benefits case. Since 1997, Clabon
Jones has been receiving benefits for a service-connected
post-traumatic stress disorder (“PTSD”), with a 100%
disability rating. Prior to that, he had been awarded
service-connected benefits for PTSD rated at 50% dis-
abling with a 1989 effective date. Mr. Jones asserts that
he is entitled to an earlier effective date for PTSD based
on a claim filed in 1973, which he alleges was still pend-
ing when his claim was later reopened.
The Board of Veterans’ Appeals (“Board”) denied Mr.
Jones’s claim for an earlier effective date; the Court of
Appeals for Veterans Claims (“Veterans Court”) affirmed.
The Veterans Court acknowledged that the 1973 claim
remained pending for several years because the Depart-
ment of Veterans Affairs (“VA”) failed to respond when
Mr. Jones appealed the decision by the regional office
(“RO”) denying that claim. However, the Veterans Court
held that the 1973 claim was effectively resolved by a
1986 Board decision denying service connection for PTSD,
and thus the 1973 claim was no longer pending in 1989
when Mr. Jones requested that the VA reopen his claim.
We agree with the Veterans Court and therefore affirm
the judgment denying an earlier effective date.
3 JONES v. DVA
BACKGROUND
Mr. Jones served on active duty in the United States
Army from August 1969 to March 1971. In September
1973, Mr. Jones filed a claim for a service-connected
illness for “nerves.” The Houston RO denied his claim in
February 1974. Mr. Jones filed a March 1974 statement
in support of his claim and requested that the RO con-
sider the statement to be a “notice of disagreement”
(“NOD”) and “a claim for re-evaluation for my nervous
condition.” Between April 1974 and January 1977, the
RO issued a series of deferred and confirmed ratings
decisions, eventually denying service connection for a
nervous condition. The RO, however, never issued the
statutorily-required Statement of the Case (“SOC”) in
response to Mr. Jones’s March 1974 statement, denomi-
nated by him as an “NOD.” See 35 U.S.C. § 7105(d)(1).
In July 1983, Mr. Jones requested that his claim be
reopened specifically for PTSD. The RO reopened his
claim but denied service connection for PTSD. Mr. Jones
did not appeal that decision.
Mr. Jones again requested that his claim be reopened,
and the RO in June 1985 again denied service connection
for PTSD. In November 1985, after receiving VA hospital
records, the RO continued the previous denial of service
connection for a nervous condition.
Mr. Jones appealed the June 1985 and November
1985 RO decisions to the Board. In November 1986, the
Board denied service connection for a nervous condition,
including PTSD. The Board stated in its decision that
new and material evidence had not been added to the
record since the RO’s denial of Mr. Jones’s claim in 1977.
Nevertheless, the Board reviewed all the evidence of
JONES v. DVA 4
record, including service medical records, and considered
Mr. Jones’s claim on the merits.
In January 1987, Mr. Jones again requested that his
claim for a nervous condition be reopened. The RO denied
service connection, and Mr. Jones appealed to the Board.
In February 1988, the Board again found that service
connection for a nervous disorder, including PTSD, was
not established.
Mr. Jones requested that his claim be reopened again
in May 1989. The RO denied his PTSD claim in Novem-
ber 1989 and, after receiving correspondence from Mr.
Jones’s personal physician, confirmed the denial in a
January 1990 decision. Mr. Jones filed an appeal with
the Board.
In February 1991, a VA medical examiner diagnosed
Mr. Jones with PTSD. The Board subsequently remanded
his PTSD claim to the RO for further development. The
RO continued to deny the claim, but in October 1995 the
Board reversed and awarded service connection for PTSD.
The RO then evaluated Mr. Jones’s PTSD as 50% dis-
abling with an effective date of May 1989, the date of Mr.
Jones’s request to reopen his claim. The RO later
awarded Mr. Jones an increased rating of 100% effective
March 1997, the date of a comprehensive VA medical
examination to determine the full extent of his PTSD.
Mr. Jones disagreed with the May 1989 effective date
and appealed to the Board. In July 1998, the Board
denied an effective date earlier than May 1989 for PTSD.
Mr. Jones appealed to the Veterans Court, which granted
a joint motion to vacate the Board’s decision and remand
for further consideration of entitlement to an earlier
effective date for service connection for PTSD. After
5 JONES v. DVA
various appeals and remands for reconsideration of Mr.
Jones’s claim in view of, among other things, the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114
Stat. 2096, the Board in March 2006 again denied an
effective date for PTSD earlier than May 1989.
One of Mr. Jones’s arguments was that he was enti-
tled to an earlier effective date because the RO’s February
1974 decision denying his original September 1973 claim
was not final. He argued specifically that the September
1973 claim remained open because the RO failed to pro-
vide an SOC in response to Mr. Jones’s March 1974
statement, which should have been construed as an NOD.
The Board acknowledged the argument, but concluded
that the February 1974 RO decision was rendered final
when it was subsumed by the 1986 Board decision, which
“addressed all the evidence of record at the time, and
made, essentially, a merits determination.” In re Jones,
No. 96-51 818, slip op. at 14 (Bd. Vet. App. Mar. 16, 2006)
(“2006 Board Decision”).
Mr. Jones appealed to the Veterans Court. That court
initially affirmed the March 2006 Board decision in a
single-judge decision. That decision was later withdrawn
when the court assigned the case to a three-judge panel
specifically to consider whether Mr. Jones’s 1973 claim
was resolved by the 1986 Board decision. The panel
issued a new decision in June 2009, affirming the March
2006 Board decision that denied an effective date earlier
than May 1989. Jones v. Shinseki, 23 Vet. App. 122
(2009).
In its opinion the court cited Williams v. Peake, 521
F.3d 1348, 1350 (Fed. Cir. 2008), for the proposition that
later adjudication of a claim having substantially the
same substance as a pending claim resolves the pending
JONES v. DVA 6
claim. Mr. Jones argued that his case was distinguish-
able from Williams and similar Veterans Court cases
because his original claim was pending in appellate
status, not, as was the case in Williams, before the RO.
The Veterans Court, though acknowledging the differ-
ence, extended the holding of Williams to Mr. Jones’s
case.
Thus, according to the Veterans Court, while a later
RO decision could not resolve Mr. Jones’s original claim
that had been placed in appellate status by virtue of the
1974 NOD, an appellate adjudication of a subsequent
claim for the same or similar disability could resolve the
earlier claim. Because the 1986 Board decision denied
service connection for a nervous condition including
PTSD, it terminated Mr. Jones’s original 1973 claim for
nerves. Accordingly, the Veterans Court concluded that
Mr. Jones was not entitled to an effective date prior to
May 1989, the date of the request to reopen his claim that
ultimately resulted in an award of service connection
benefits.
Mr. Jones appeals the question of law. We have ju-
risdiction pursuant to 38 U.S.C. § 7292.
DISCUSSION
As a general proposition, the law regarding the effec-
tive date of an award of service connection benefits is
well-understood. The effective date of an award of bene-
fits based on an original claim cannot be earlier than the
date that the VA received the claim. See 38 U.S.C.
§ 5110(a); Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir.
2009). For an award based on a claim reopened after a
final adjudication, the effective date is typically the date
that the request to reopen was filed. See 38 U.S.C.
7 JONES v. DVA
§ 5110(a); Adams, 568 F.3d at 960. A claim for benefits
remains pending until it is finally adjudicated. 38 C.F.R.
§ 3.160(c); Adams, 568 F.3d at 960. If a claim is left
pending without a final adjudication, the claim may be
addressed when a subsequent claim is adjudicated by the
VA, in which case the effective date for any resulting
award of benefits will be the effective date applicable to
the earlier claim. Adams, 568 F.3d at 960 (citing Myers v.
Principi, 16 Vet. App. 228, 236 (2002)).
In this case, Mr. Jones received an award of service-
connected benefits for PTSD with an effective date of May
1989, the date of his last request to reopen his claim. Mr.
Jones alleges that he is entitled instead to an effective
date of September 1973, the date of his original claim.
His theory is that the original claim was still pending
when the Board awarded benefits based on his 1989
request to reopen his claim. He disagrees with the con-
clusion reached by the Veterans Court that the 1986
Board decision was a final adjudication of the 1973 claim.
According to Mr. Jones, the applicable legal rule is
that established by the Veterans Court in Myers v. Prin-
cipi, 16 Vet. App. 228 (2002). In that case, the RO denied
the veteran’s claim for service connection in 1958. Id. at
229. The veteran thereafter submitted a document that
the VA failed to recognize and properly treat as an NOD.
Id. Decades later, the veteran attempted to reopen his
claim, and the Board eventually granted him service
connection benefits effective as of the date that he re-
quested reopening of his claim. Id. at 230.
Upon review of the Board’s decision, the Veterans
Court in Myers held that the 1958 RO decision never
became final because the VA failed to provide the veteran
with an SOC after his claim was placed in appellate
JONES v. DVA 8
status by the NOD. Id. at 235. As a result, the original
1958 claim was “part of the current claim stream,” and
the Board decision awarding benefits was a final resolu-
tion of the appeal from the original claim. Id. at 236. In
other words, the original claim remained in appellate
status until it was resolved by the Board’s decision on the
reopened claim granting benefits, the effective date of
which should then have related back to the original claim.
We agree with Mr. Jones that Myers states a rule ap-
plicable to his case, but we also agree with the Govern-
ment that, contrary to Mr. Jones’s position, the Veterans
Court decision in this case is not inconsistent with Myers.
Neither party disputes that, as in Myers, Mr. Jones’s
original 1973 claim was left pending in appellate status
when the VA failed to file an SOC in response to the 1974
NOD. But Mr. Jones appears to argue that, under Myers,
a claim pending in appellate status can only be resolved
by a later Board decision that grants service connection
after the claim is reopened, and not by a Board decision
that denies service connection. In our view that is a
distinction without a difference. A decision by the Board
denying benefits is as much a final adjudication of a claim
as a decision by the Board granting benefits. Therefore, a
claim pending in appellate status may be resolved by a
final Board decision that addresses the merits of the
pending claim, whether it results in a grant or denial of
benefits.
This conclusion is consistent with the line of authority
relied on by the Veterans Court in this case, including
Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009), and
Williams v. Peake, 521 F.3d 1348 (Fed. Cir. 2008). These
cases establish that under appropriate circumstances, a
pending claim for benefits can be resolved by later adjudi-
cation of an identical claim or a related claim because the
9 JONES v. DVA
later decision provides sufficient notice to the claimant
that the pending claim has been finally resolved. One
such circumstance is illustrated by our decision in Adams.
The veteran in that case filed two claims closely associ-
ated in substance and time, but the VA denied only one of
the claims explicitly. Adams, 568 F.3d at 963-64. Under
the “implicit denial rule,” the second claim was also
deemed denied because the VA’s decision gave the veteran
reasonable notice that related claims were being denied.
Id.; see also Munro v. Shinseki, 2010 WL 3064301, at *3-5
(Fed. Cir. Aug. 6, 2010) (discussing “implicit denial”
cases); Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed.
Cir. 2006) (holding that decision granting service connec-
tion for head trauma implicitly denied simultaneous claim
for psychiatric condition).
In Williams, we applied a variation of the rule to hold
that “a subsequent final adjudication of a claim which is
identical to a pending claim that had not been finally
adjudicated terminates the pending status of the earlier
claim.” 521 F.3d at 1351. In that case, the veteran did
not receive notice that the RO had denied his initial claim
for a nervous condition. Id. at 1349. In a subsequent
final decision, the RO denied on the merits a second claim
for the same disability. Id. When the VA granted service
connection many years later based on a reopened claim,
the veteran alleged that he was entitled to an earlier
effective date relating back to his initial claim, which he
argued had not been finally adjudicated. Id. We affirmed
the Veterans Court’s determination that the initial claim
did not remain pending because the RO’s denial of the
second claim terminated the pending status of any identi-
cal pending claims. Id. at 1351.
The case before us is quite similar to Williams, but
with the one difference noted by the Veterans Court.
JONES v. DVA 10
Williams involved a claim that was left pending before the
RO and was later resolved by the RO’s denial of an identi-
cal claim. Here Mr. Jones’s initial claim was left pending
because the VA failed to issue an SOC; the legal question
presented is whether a subsequent Board decision deny-
ing an identical claim serves as a final adjudication of a
claim pending in appellate status.
Mr. Jones argues that the Veterans Court erred in
applying Williams in the appellate context. We disagree.
The key question is whether sufficient notice has been
provided so that a veteran would know, or reasonably can
be expected to understand, that he will not be awarded
benefits for the disability asserted in his pending claim,
and thus can decide for himself whether to accept the
decision or seek redress elsewhere. See Adams, 568 F.3d
at 965 (“[T]he implicit denial rule is, at bottom, a notice
provision.”); Williams, 521 F.3d at 1351 (“The notice given
that the later claim has been disallowed informs the
veteran that his claim for service connection has failed.”).
If a veteran has a claim pending in appellate status, a
decision by the Board denying a subsequent identical
claim effectively informs him that the earlier claim also
has been disallowed by the Board on appeal. This is a
logical extension of Williams because the veteran receives
sufficient notice regarding the appellate disposition of his
pending claim.
Mr. Jones further argues that the Veterans Court
erred in finding that the 1986 Board decision actually
resolved the 1973 claim. Though Mr. Jones now concedes
that the 1986 Board decision denying service connection
for a nervous condition including PTSD involved the same
disability as his 1973 claim for “nerves,” he asserts that
the 1986 decision did not consider the merits of the 1973
claim. Instead, he contends that the Board in 1986 only
11 JONES v. DVA
determined that there had been no new and material
evidence added to the record since 1977 to warrant re-
opening his claim.
Whether the 1986 Board decision addressed the mer-
its of Mr. Jones’s original 1973 claim would seem to be a
factual issue that lies beyond the scope of our review. See
38 U.S.C. § 7292(d)(2). Nevertheless, we note that the
Board in 2006 explicitly found that “the 1986 Board
decision addressed all the evidence of record at the time,
and made, essentially, a merits determination.” 2006
Board Decision, slip op. at 14. Furthermore, the record
supports this finding. The Board’s 1986 decision detailed
all the evidence of record, including Mr. Jones’s service
medical records and other medical records from 1973 that
predated his original claim. While the Board also stated
that evidence received since 1977 had not added anything
new or material to the record, the Board in 1986 clearly
reviewed the entire record and addressed the merits of
Mr. Jones’s claim for a nervous condition. As the Veter-
ans Court found, “the Board’s 1986 decision was sufficient
to put Mr. Jones on notice that his 1973 claim for VA
benefits for ‘nerves’—which until that time had remained
pending by virtue of its appellate status—was being
denied.” Jones, 23 Vet. App. at 125.
For the foregoing reasons, we hold that the Veterans
Court correctly determined that Mr. Jones’s 1973 claim
was resolved by the 1986 Board decision. We therefore
affirm the judgment of the Veterans Court denying an
effective date earlier than 1989.
AFFIRMED
JONES v. DVA 12
COSTS
Each party shall bear its own costs.