United States Court of Appeals for the Federal Circuit
2009-7024
EUGENE CHARLES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
John F. Cameron, Jr., of Montgomery, Alabama, argued for claimant-appellant.
Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent-appellee. On the brief were Michael F. Hertz, Deputy Assistant Attorney
General, Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director, and
Tara J. Kilfoyle, Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy
Assistant General Counsel, and Martie S. Adelman, Attorney, Office of the General
Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Alan G. Lance, Sr.
United States Court of Appeals for the Federal Circuit
2009-7024
EUGENE CHARLES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-0020, Judge
Alan G. Lance, Sr.
___________________________
DECIDED: December 1, 2009
___________________________
Before GAJARSA, DYK, and MOORE, Circuit Judges.
MOORE, Circuit Judge.
Eugene Charles appeals the decision of the Court of Appeals for Veterans
Claims (Veterans Court) affirming the Board of Veterans’ Appeals (Board) decision
denying Mr. Charles an earlier effective date for service-connected disability benefits.
For the reasons discussed below, we vacate and remand.
BACKGROUND
Mr. Charles served on active duty in the United States Navy from August 7, 1972
to August 30, 1974. On September 10, 1980, he filed a claim for service-connected
benefits for manic depression (1980 Claim). On October 28, 1980, the Department of
Veterans Affairs (VA) regional office (RO) issued a rating decision denying his claim
(1980 Rating Decision). Mr. Charles submitted additional medical evidence, in
particular a VA medical certificate dated September 1981 diagnosing him with a
paranoid personality disorder. VA did not issue a Supplemental Statement of the Case
nor is there any assertion that VA considered this supplemental evidence.
On March 1, 1982, Mr. Charles filed a second claim for benefits for a nerve
condition (1982 Claim). RO sent Mr. Charles a letter stating that “[s]ervice connection
for nervous condition was previously denied” and informing him that in order to reopen
his claim, he “would have to submit evidence not previously considered showing that
this condition was incurred in or aggravated by active duty” (1982 Letter).
Thereafter, Mr. Charles submitted additional information to RO, including a third
claim 1 and additional medical evidence. On February 5, 1991, Mr. Charles filed a fourth
claim (1991 Claim), in which he stated he was filing for service-connected disabilities for
a “blood disease and nervous condition” and that a doctor at a VA medical center said
he should file this claim.
The record is unclear as to exactly what happened next. In 1995, the Board
noted that Mr. Charles’ claim file had been lost and rebuilt, and it was “not possible to
tell whether [Mr. Charles] was properly notified of the denial” or “what records might
have been utilized in this purported denial.” The Board further noted that Mr. Charles
appeared to have been awarded benefits by the Social Security Administration (SSA).
The Board remanded Mr. Charles’ claim to RO for further development and its remand
order stated that RO should request copies of Mr. Charles’ medical records from the
1
The RO interpreted Mr. Charles’ third claim (filed June 2, 1983) as a
request for non-service connected benefits. In 1984, RO issued a rating decision
granting him pension dating back to July 1, 1983.
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SSA. RO did not obtain Mr. Charles’ SSA medical records. Charles v. Peake, No. 06-
0200, 2008 U.S. App. Vet. Claims LEXIS 626, *26-27 (May 14, 2008). On appeal from
RO, in 1997, the Board reviewed the evidence in Mr. Charles’ file and determined that
he had not submitted any new and material evidence. The Board therefore denied his
request to reopen his claim for a psychiatric disorder.
Mr. Charles appealed to the Veterans Court. In 1998, we invalidated the test for
new and material evidence that had been applied by the Board in favor of the standard
set forth by VA in 38 C.F.R. § 3.156(a). Hodge v. West, 155 F.3d 1356, 1363-64 (Fed.
Cir. 1998). Thus, upon a joint motion filed by the parties, the Veterans Court vacated
the Board’s 1997 decision and remanded for a new determination of whether Mr.
Charles had submitted new and material evidence. On remand, the Board found that
“[c]ompetent evidence linking a current psychiatric disability to an acquired in-service
psychiatric disability has been presented.” On July 21, 2000, the Board remanded to
RO with detailed instructions for further development of Mr. Charles’ claim, reminding
RO that it should afford the claim expeditious treatment. On February 21, 2003, RO
issued a rating decision granting Mr. Charles a 50% disability rating for his service-
connected psychiatric disorder dating back to February 5, 1991 (the date of Mr. Charles’
“Statement in Support of a Claim”).
Mr. Charles timely submitted a Notice of Disagreement regarding the 2003
Rating Decision, challenging both the rating and the effective date. RO sent Mr.
Charles a Statement of the Case dated June 21, 2004, which indicated that he had
been granted a 100% disability rating dating back to February 5, 1991. RO denied Mr.
Charles’ request for an earlier effective date. RO explained that his benefits could not
2009-7024 3
date back any earlier because his original claim (the 1980 Claim) was final by virtue of
the 1980 Rating Decision denying compensation, and his request to reopen that claim
was not received until February 5, 1991.
Mr. Charles appealed to the Board. In 2005, the Board denied his request for an
effective date earlier than 1991. The Board explained that the benefits could not extend
back before the date of a new claim or a claim to reopen. It then determined that Mr.
Charles did not have a pending claim or a claim to reopen dated prior to February 5,
1991. With respect to his 1980 Claim, the Board determined that the 1980 Rating
Decision became final because Mr. Charles did not appeal. As to the 1982 Claim, the
Board interpreted it as a request to reopen his 1980 Claim and concluded that Mr.
Charles abandoned the 1982 Claim when he failed to reply to RO’s 1982 Letter
requesting new evidence. Thus, the Board found that the preponderance of the
evidence weighed against Mr. Charles’ claim for an effective date earlier than February
5, 1991.
Mr. Charles appealed to the Veterans Court, which affirmed the Board’s decision.
Charles, 2008 U.S. App. Vet. Claims LEXIS 626. Relevant to this appeal, the Veterans
Court agreed with the Board that Mr. Charles abandoned his 1982 Claim by not
supplying medical evidence within one year of the date it was requested. Id. at *18-21.
The Veterans Court also agreed with the Board that Mr. Charles’ 1980 Claim was final.
The Veterans Court held that Mr. Charles failed to appeal the 1980 decision and that by
abandoning his 1982 Claim he abandoned the 1980 Claim. The Veterans Court
recognized that Mr. Charles asserted that he had submitted new evidence within one
year of the 1980 Claim, which would render the 1980 Rating Decision nonfinal, and the
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government had failed to address or refute that assertion. Id. at *22. The Veterans
Court, however, reasoned that the abandonment of the 1982 Claim rendered his prior
pending unadjudicated claims final, citing our decision in Williams v. Peake, 521 F.3d
1348, 1350 (Fed. Cir. 2008). Thus, the Veterans Court concluded that there was no
clear error in the Board’s determination that Mr. Charles was not entitled to an effective
date earlier than February 5, 1991. Id. at *24.
Mr. Charles timely appealed to our court. We have jurisdiction to review the
Veterans Court’s decision under 38 U.S.C. § 7292.
DISCUSSION
We may review a decision of the Veterans Court to determine the validity of a
statute or regulation or any interpretation thereof that was relied on by the Veterans
Court in its decision. 38 U.S.C. § 7292(a). Absent a constitutional issue, we cannot
review factual determinations or “challenge[s] to a law or regulation as applied to the
facts of a particular case.” Id. § 7292(d)(2).
Mr. Charles argues that the Veterans Court misinterpreted 38 U.S.C. § 5108 and
38 C.F.R. § 3.158(a) when it concluded that the 1980 Rating Decision was final. 38
U.S.C. § 5108 states that “[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.” 38 C.F.R. § 3.158(a) states in relevant part
that “where evidence requested in connection with an original claim, a claim for increase
or to reopen or for the purpose of determining continued entitlement is not furnished
within 1 year after the date of request, the claim will be considered abandoned.” Mr.
Charles asserts that the 1980 Rating Decision was rendered nonfinal when he
2009-7024 5
submitted new evidence within his one-year period of appeal. Once RO renders a
decision on a claim for benefits, the claimant may appeal by filing a Notice of
Disagreement within one year of the mailing date of the decision. 38 U.S.C.
§ 7105(b)(1). “New and material evidence received prior to the expiration of the appeal
period . . . will be considered as having been filed in connection with the claim which
was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b). RO must
notify the claimant in writing of decisions affecting the payment of benefits or granting
relief. 38 C.F.R. § 3.103(f). Among other things, this notice must provide the reason for
the decision, summarize the evidence considered, and inform the claimant of the right to
appeal. Id.
Mr. Charles asserted—and the government did not refute—that he submitted
new evidence within his one-year appeal period. The government never argued below
that the evidence was not submitted within the one-year appeal period. In fact, the
Veterans Court noted that it “could construe the Secretary’s failure to respond to these
arguments as a concession of error.” Charles, 2008 U.S. App. Vet. Claims LEXIS 626,
*22. The government cannot argue for the first time on appeal that the new evidence
was not submitted by Mr. Charles within the one-year appeal period—such argument
has been waived. 2
As the government acknowledged, when new evidence is submitted within the
appeal period, RO must consider it and prepare a Supplemental Statement of the Case.
2
The government moves to supplement the joint appendix with evidence
which it claims would support its new argument that Mr. Charles may not have
submitted the new evidence within the one-year time period. As the government waived
this argument by failing to raise it in the proceedings below, we deny the motion to
supplement the joint appendix.
2009-7024 6
Oral Argument at 16:48-17:02, 18:41-18:50. It is undisputed that RO did not do this with
regard to the new evidence that was submitted following the 1980 Rating Decision.
Because new evidence was submitted within one year of the 1980 Rating Decision, Mr.
Charles’ 1980 Rating Decision did not become final by his failure to appeal within one
year. See Muehl v. West, 13 Vet. App. 159, 161-62 (1999) (concluding that where new
evidence was received within the appeal period, RO’s decision was not a final decision,
and the new evidence should have been considered in conjunction with the original
claim).
The government asserts, and the Veterans Court found, that the 1980 Rating
Decision became final when Mr. Charles abandoned his 1982 Claim by failing to present
new evidence within one year of the VA request. The question of interpretation
presented in this case is whether a subsequent claim that is abandoned renders an
earlier pending claim also abandoned. This situation is markedly different from that in
which a later-filed claim is adjudicated on the merits. As we explained in Williams v.
Peake, “a reasonably raised claim remains pending until there is either a recognition of
the substance of the claim in an RO decision from which a claimant could deduce that
the claim was adjudicated or an explicit adjudication of a subsequent ‘claim’ for the
same disability.” 521 F.3d at 1350 (quoting Ingram v. Nicholson, 21 Vet. App. 232, 243
(2007)). Thus, when the substance of a later-filed claim is addressed in an RO
decision, the claimant can infer that the earlier-filed claim based on the same disability
has also been adjudicated. Id. When a later-filed claim is abandoned, it does not have
the same effect. “[U]nlike an adjudicated claim, where a decision has been rendered
and notice of that decision has been provided to the claimant, an abandoned claim has
2009-7024 7
not been adjudicated and no specific notice has been provided to the claimant that his
claim might be or even has been considered abandoned for failure to timely provide
information.” Charles v. Shinseki, No. 06-20, Order Denying Motion for Reconsideration
(Kasold, J., dissenting) (Vet. App. Aug. 29, 2008). We conclude that the Veterans Court
misinterpreted 38 C.F.R. § 3.158 when it determined that Mr. Charles’ 1980 claim was
finally denied. Abandonment of a non-final and non-appealable later claim cannot
render final an unadjudicated earlier claim in which the agency failed to act. 3 Neither 38
U.S.C. § 5108 nor 38 C.F.R. § 3.158 can be interpreted as requiring a veteran to submit
new and material evidence in order to reopen a pending, unadjudicated claim.
In view of our decision that a later abandoned claim cannot render final an
earlier-filed unadjudicated claim, we need not reach the issue of whether the time limits
under 38 U.S.C. §§ 5102 and 5103 and 38 C.F.R. §§ 3.109 and 3.158 are subject to
equitable tolling. Because the 1980 claim was not final, all subsequent claims,
correspondence, and medical evidence are part of that claim for consideration by VA.
Oral Argument at 29:05-41 (government acknowledges that all subsequent filings would
be additional evidence to be considered part of the 1980 claim if it is still pending).
Hence, Mr. Charles does not need to prevail on his tolling argument in order to have the
subsequent evidence considered by VA. We also need not address whether VA
breached its duty to assist Mr. Charles.
3
The government concedes that the 1982 claim was non-final and non-
appealable.
2009-7024 8
CONCLUSION
For the foregoing reasons, we vacate the decision of the Veterans Court and
remand to the Veterans Court with instructions to remand to the Board, and with further
instructions for the Board to remand to RO to determine whether Mr. Charles is entitled
to an effective date prior to February 5, 1991. On remand, RO must consider all
evidence of record dating back to Mr. Charles’ original claim. In addition, RO should
request and consider Mr. Charles’ SSA medical records, as initially required by the
Board’s 1995 remand order.
VACATED and REMANDED
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