Sims v. Shinseki

United States Court of Appeals for the Federal Circuit
2008-7082

JAMES D. SIMS,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

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.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Mary J. Schoelen
 United States Court of Appeals for the Federal Circuit

2008-7082

JAMES D. SIMS,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims
in 06-0335, Judge Mary J. Schoelen.

___________________________

DECIDED: August 13, 2009
___________________________

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

2008-7082 2
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

2008-7082 3
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).

2008-7082 4
 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.

1
The claimant can also submit additional evidence after initiating an appeal.
38 C.F.R § 20.800. The consideration of such additional evidence is governed by 38
C.F.R. §§ 3.156(b), 20.1304(c). See Jackson v. Nicholson, 449 F.3d 1204, 1206–07
(Fed. Cir. 2006). RO rulings with respect to additional evidence submitted after the
issuance of an SOC take the form of an SSOC. 38 C.F.R. § 19.31(b).

2008-7082 5
§ 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 SOC, and Sims

filed a substantive appeal to the Board. The Board determined that there was new and

material evidence submitted by the veteran and remanded the case for consideration of

the merits of the claim. The RO reopened the claim, but rejected the service connection

claim in an SSOC.

2008-7082 6
 Sims asserts that, when the Board ordered reopening, the RO was obligated to

begin anew with the claim adjudication (i.e., issue a new rating decision followed by an

SOC) and was not authorized to simply issue an SSOC. Sims’s primary theory is that

as a result of the use of the SSOC procedure he was denied the opportunity to submit

additional evidence during a one-year period after the RO decision—an opportunity that

exists under the SOC procedure. 2

We disagree that the RO followed an improper procedure. The sole basis for

Sims’s argument are the provisions of 38 U.S.C. § 7104 and 38 C.F.R. § 19.31(a).

Section 7104(a) provides, “[a]ll questions in a matter which under section 511(a) of this

title is subject to decision by the Secretary shall be subject to one review on appeal to

the Secretary.” (Emphases added). And, 38 C.F.R. § 19.31(a) provides, “[i]n no case

will a Supplemental Statement of the Case be used to announce decisions by the

agency of original jurisdiction on issues not previously addressed in the Statement of

the Case.” (emphasis added).

The initial filing of a request to reopen is treated as a separate “matter” or “issue”

from the initial decision on the claim for benefits, but this does not suggest that the

decision on the merits of the underlying claim in a reopened proceeding is yet another

new “matter” or “issue.” Nothing in the statute or regulations suggests that an entirely

new rating decision is required to address the issue of service connection or that service

connection is a new “matter” or new “issue” before the RO. Indeed, the regulations

2
The regulations provide a one-year period for appeal and allow the
submission of additional evidence during that period. See 38 U.S.C. § 7105(b)(1);
38 C.F.R. § 20.302(b)(2). When the RO decision on remand is issued as an SSOC, it is
automatically transferred to the Board thirty days after the issuance of the SSOC.
38 C.F.R. § 20.302(c). In other words, the one-year period is truncated.

2008-7082 7
clearly contemplate the use of the SSOC procedure on remands from the Board. See

38 C.F.R. § 19.31(c) (“The agency of original jurisdiction will issue a Supplement

Statement of the Case if, pursuant to a remand by the Board, it develops the evidence

or cures a procedural defect, unless” the only purpose was to assemble records

previously considered by the AOJ or the Board specified that an SSOC is not required.

(emphasis added)); id. § 19.38 (“When a case is remanded by the Board of Veterans’

Appeals . . . the case will be reviewed . . . . If any benefits sought on appeal remain

denied following this review, the agency of original jurisdiction will issue a Supplemental

Statement of the Case . . . .” (emphasis added)).

We agree with the reasoning in Bernard, where the Veterans Court addressed

this same question, stating:

Review of the governing statutory provisions in 38 U.S.C.A.
§§ 7104(a) and 511(a) in the context of the overall statutory scheme in title
38, U.S. Code, governing veterans’ benefits claims compels the
conclusion that the question whether a claimant has submitted new and
material evidence to reopen a claim and the question whether, upon such
reopening, a claimant is entitled to VA benefits, are questions relating to a
single “matter” for purposes of the Board’s jurisdiction under 38 U.S.C.A.
§ 7104(a). . . .
It is axiomatic that claimants do not submit claims merely for the
reopening of their previously and finally denied claims. Rather, they
submit claims for VA benefits, which, in cases of previously and finally
denied claims, implicate both the question of whether there is new and
material evidence to reopen the claim and the question of whether, upon
such reopening, the claimant is entitled to the requested benefits. . . .
Although the two questions are distinct, they are components of a single
claim for benefits under a law that affects the provision of benefits by the
Secretary. . . . The “matter” which was the subject of the RO’s decision
and, consequently, over which the [Board] has jurisdiction under 38
U.S.C.A. § 7104(a), is the veteran’s claim of entitlement to VA
benefits . . . .

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4 Vet. App. at 391-92 (quotation marks omitted). In this context, the RO does not

address a new “issue” or “matter” when it considers the merits of the claim for service

connection after a reopening for new and material evidence.

The RO appropriately issued an SSOC on remand in denying Sims’s claim for

service connection, and the Board did not exceed its jurisdiction by affirming that ruling.

There is also no merit to Sims’s claim that the notice he received was inadequate under

38 U.S.C. § 5104(a) or 38 C.F.R. § 3.103(b)(1). Therefore, we affirm.

AFFIRMED

COSTS

No costs.

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