Andrews, Jr. v. Nicholson

Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit

04-7155

EDWARD R. ANDREWS, JR.,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.

John H. Williamson, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and Robert E. Kirschman, Jr., Assistant Director.

Appealed from: United States Court of Appeals for Veterans Claims

Judge William P. Greene, Jr.
 United States Court of Appeals for the Federal Circuit

04-7155

EDWARD R. ANDREWS, JR.,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary
of Veterans Affairs,

Respondent-Appellee.
___________________________

DECIDED: August 17, 2005
___________________________

Before RADER, GAJARSA, and DYK, Circuit Judges.

DYK, Circuit Judge.

Edward R. Andrews Jr. (“Andrews”) appeals from the decision of the Court of

Appeals for Veterans Claims (“Veterans Court”), affirming the decision of the Board of

Veterans’ Appeals (“Board”). The Board denied Andrews’ claims of clear and

unmistakable error (“CUE”) in earlier decisions of the Department of Veterans Affairs

(“VA”). We affirm.

BACKGROUND

Andrews served in active duty in the United States Army from 1966 to 1969. In

1981 he filed a pro se claim for disability benefits, claiming that he suffered from, inter

alia, chronic anxiety, prolonged depression, and inability to hold a job. Because

Andrews failed to report to a scheduled examination, the regional office (“RO”) denied

the 1981 claim.
 In 1983 Andrews, again acting pro se, sought to reopen his 1981 claim for

disability benefits. Additional medical evidence was submitted to the RO, including a

report diagnosing Andrews with chronic post-traumatic stress syndrome (“PTSD”), and

noting that Andrews was “unemployed if not unemployable.” J.A. at 82. The RO

granted the disability claim and assigned a 10% disability rating for PTSD. The RO did

not treat Andrews as raising a claim for total disability based on individual

unemployability (“TDIU”),1 and did not discuss the evidence of unemployability.

In 1984 Andrews submitted a pro se claim for an increased rating. The examiner

noted that Andrews had held 30-40 jobs since returning from Vietnam, had not worked

at all in the four years prior to the examination, and could not get along with people.

The examiner diagnosed Andrews with severe and chronic PTSD. In light of the

examination report, the RO increased Andrews’ disability rating to 30% in January 1985.

The RO again did not treat Andrews as raising a TDIU claim.

In 1995, this time through counsel, Andrews filed a claim with the VA for revision

of the 1983 and 1985 RO decisions based on clear and unmistakable error. Before the

Board on the CUE motion, Andrews argued exclusively that the 10% and 30% ratings

were incorrect because the RO had misapplied the disability schedule at 38 C.F.R.

§ 4.132 (1985). He urged that it was “not possible to assign a 10% rating when the

medical evidence describes such chronic symptoms,” and it was also “not possible to

assign a moderate [30%] rating when the diagnosis of the service-connected condition

is described as severe and chronic.” J.A. at 74-75. At no time did Andrews argue that

1
Under the TDIU regulations, a veteran suffering from a service-connected
disability can receive a 100% rating under certain circumstances if he can establish
unemployability. See 38 C.F.R. § 4.16 (2004).

04-7155 2
the RO in 1983 or 1985 had erred in failing to consider Andrews as having raised a

TDIU claim. The Board denied the CUE claim, finding that the RO had made no legal

error, and that Andrews’ arguments were no more than an assertion that the RO should

have weighed the evidence differently. J.A. at 72.

Andrews then appealed to the Veterans Court. Andrews argued that CUE claims

present legal issues that should be reviewed de novo by the Veterans Court in their

entirety. On the merits, Andrews argued for the first time that the VA failed to consider

evidence of unemployability in 1983 and 1985, and such failure was clear and

unmistakable error. J.A. at 58. However, Andrews continued to urge only that the

evidence of unemployability should have led to a higher disability rating for PTSD. Id.

He did not argue that the RO erred in failing to treat his filings as raising a TDIU claim.

The Veterans Court dismissed the appeal in an unpublished one-page order,

stating only that “the appellant has failed to allege any errors in the Board’s decision

and thus abandons the only issues addressed by the Board.” Andrews v. West, No. 98-

1849 (Vet. App. Jan. 24, 2000) (“Andrews I”). On appeal to this court, we held in a non-

precedential opinion that Andrews’ argument that the Board failed to consider all the

evidence was an allegation of error in the Board decision, vacated the Veterans Court’s

order, and remanded the case for disposition on the merits. Andrews v. Principi, 25

Fed. Appx. 997, 998 (Fed. Cir. 2001) (“Andrews II”).

On remand, the Veterans Court initially affirmed the Board decision in an

unpublished single-judge memorandum opinion. Andrews v. Principi, No. 98-1849 (Vet.

App. Feb. 27, 2003). In response to Andrews’ motion for reconsideration and panel

review, the Veterans Court withdrew the single-judge opinion and in its place issued a

04-7155 3
precedential panel opinion affirming the Board, with one judge dissenting in part.

Andrews v. Principi, 18 Vet. App. 177 (2004) (“Andrews III”). The Veterans Court noted

that it reviewed decisions of the Board to determine whether the Board decision was

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Id. at 181 (internal quotation omitted). The court then rejected Andrews’ claim that the

VA in 1983 and 1985 failed to consider all the evidence because the RO is not always

required to discuss the evidence it considers; and mere silence is not sufficient to

establish a CUE claim based on a failure to consider evidence of record. Id. at 184.

The court then held that, in any event, any error in failing to consider evidence would

not have been outcome determinative and thus Andrews failed to establish CUE. Id.

Finally, the Veterans Court considered the effect of this court’s intervening

decision in Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), where we held that

“[o]nce a veteran submits evidence of a medical disability and makes a claim for the

highest rating possible, and additionally submits evidence of unemployability, . . . the VA

must consider TDIU.” Id. at 1384. The Veterans Court held that: (1) Roberson applies

only to pleadings in the underlying claim (i.e. the 1983 and 1985 claims for benefits),

and does not apply to the CUE motion itself; (2) if Roberson applied to CUE motions at

all, it did not change the requirement that CUE claims be pled with specificity, and in the

CUE motion Andrews failed to allege an error in the 1983 and 1985 decision with

specificity; and (3) if Roberson applied to CUE motions and modified the requirement

that CUE claims be pled with specificity, Andrews did not properly argue that the Board

failed to read his CUE motion sympathetically under Roberson. Andrews III, 18 Vet.

App. at 185-86. The Veterans Court therefore affirmed the decision of the Board finding

04-7155 4
no CUE in the 1983 and 1985 decisions. Andrews appeals. We have jurisdiction

pursuant to 38 U.S.C. § 7292.

DISCUSSION

Under 38 U.S.C. § 7292, as amended in 2002, we have jurisdiction to review

decisions of the Court of Appeals for Veterans Claims on all issues of law where “the

decision below regarding a governing rule of law would have been altered by adopting

the position being urged.” Morgan v. Principi, 327 F.3d 1357, 1363 (Fed. Cir. 2003);

see 38 U.S.C. § 7292 (2000 & Supp. II 2002); Wagner v. Principi, 370 F.3d 1089, 1091

(Fed. Cir. 2004). We have jurisdiction “to determine whether the legal requirement of

the statute or regulation has been correctly interpreted in a particular context where the

relevant facts are not in dispute.” Szemraj v. Principi, 357 F.3d 1370, 1375 (Fed. Cir.

2004). However, except with respect to constitutional issues, we do not have

jurisdiction to “review (A) a challenge to a factual determination, or (B) a challenge to a

law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)

(2000).2 We review issues of law without deference. Wagner, 370 F.3d at 1092.

I

The government challenges the jurisdiction of this court to consider legal error in

the adjudication of Andrews’ claim. Apparently relying on the finality requirement

discussed in Mayer v. Brown, 37 F.3d 618, 619-20 (Fed. Cir. 1994), the government

argues that, even if the VA had erred in failing to construe the veteran’s pleadings to

raise a TDIU claim in the 1983 and 1985 proceedings, such an error should not be

2
See also United States v. Gaudin, 515 U.S. 506, 512 (1995) (“[T]he
application-of-legal-standard-to-fact sort of question [is] commonly called a ‘mixed
question of law and fact.’”); Lennox v. Principi, 353 F.3d 941, 945 (Fed. Cir. 2003).

04-7155 5
considered on a CUE motion. Rather, the government urges that the TDIU claim is still

pending before the RO awaiting adjudication, and that the Veterans Court and this court

are without jurisdiction because there is no Board decision for us to review.3 We

disagree; the government’s position is contradicted by our decision in Roberson.

In Roberson, the veteran filed an original claim in 1982. The application for

benefits did not specify a TDIU claim, but did note that the veteran had not worked for a

year. A RO decision was rendered in 1984, without discussing TDIU. The veteran then

filed a CUE motion in 1995, arguing that the 1984 RO decision was clearly and

unmistakably erroneous because it failed to consider a TDIU claim. On appeal from the

CUE motion, we held that “Roberson’s claim has been finally decided by the RO” and

the Board, and that the claim was ripe for review. Roberson, 251 F.3d at 1384. Thus,

we clearly held in Roberson that the VA’s failure to consider a TDIU claim in this

manner is properly challenged through a CUE motion. Because the Board has ruled on

the CUE motion, the Veterans Court properly had jurisdiction to review its decision, and

we have jurisdiction to review the Veterans Court’s decision.

II

On the merits, Andrews submits that the Veterans Court somehow applied the

wrong standard of review for Board decisions. Before the Veterans Court he argued

that Board decisions on CUE are required to be reviewed de novo by the Veterans

Court. He now appears to argue that review by the Veterans Court is de novo as to

3
The government does not appear to have raised this issue below.
Nevertheless, challenges to the jurisdiction of this court or of a lower court under review
may be raised at any time. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986).

04-7155 6
issues of law. We find no legal error in the Veterans Court’s application of the standard

of review because the Veterans Court did review the legal issues de novo. The

Veterans Court’s standard of review is defined by statute. 38 U.S.C. § 7261 (2000).

The pertinent statutory provision states that the Veterans Court shall “hold unlawful and

set aside decisions . . . found to be . . . arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” Id. § 7261(a)(3); Kent v. Principi, 389 F.3d 1380,

1383-84 (Fed. Cir. 2004). The Veterans Court held that this was the standard of review

being applied. Andrews III, 18 Vet. App. at 183. It then rejected appellant’s claim under

this standard of review because the RO’s failure to cite to all of the evidence in 1983

and 1985 did not by itself establish a failure to consider all the evidence. Id. at 183-84.

There is no error in this holding.

III

However, there is also an issue whether the Veterans Court correctly interpreted

this court’s decision in Roberson, concerning the circumstances in which the VA has a

duty to read pleadings sympathetically. “Roberson requires, with respect to all pro se

pleadings, that the VA give a sympathetic reading to the veteran’s filings.” Szemraj, 357

F.3d at 1373; see Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Andrews

relies on Roberson in two respects:

Andrews argues that, under Roberson, the VA should have construed his 1983

and 1985 application for benefits to raise a TDIU claim. Andrews correctly notes that

the record from the 1983 and 1985 proceedings contains evidence of unemployability.

In this respect, the Veterans Court does not appear to disagree that Roberson applies.

But Andrews cannot prevail on this argument unless he properly raised it before the

04-7155 7
Board in a CUE motion. In this respect, the Veterans Court held that Roberson was

inapplicable. The Veterans Court held that Roberson did not apply to CUE motions,

stating that “[u]nder Moody, the Board was to afford [a] sympathetic reading to [the

original] filings to see if the underlying decision contained CUE,” but such a sympathetic

reading was not required for CUE motions themselves. Andrews III, 18 Vet. App. at

185. The Veterans Court then held that, even if Roberson did apply to CUE motions,

Roberson did not modify the requirement that CUE motions be pled with specificity, and

that Andrews failed to satisfy the specificity requirement. Id. Andrews argues the

Veterans Court erred and that Roberson is also applicable to CUE motions. He urges

that the VA should have read his 1995 CUE motion sympathetically to raise an

argument that his 1983 and 1985 filings raise a TDIU claim, even though the TDIU issue

was not argued in the CUE motion.

The Veterans Court’s interpretation of Roberson was in error. We have

explained that Roberson is “not limited to its particular facts” and instead “Roberson

requires, with respect to all pro se pleadings, that the VA give a sympathetic reading to

the veteran’s filings.” Szemraj, 357 F.3d at 1373; see Moody, 360 F.3d at 1310. This

includes CUE motions filed pro se. Although CUE claims must be pled with specificity,

38 C.F.R. § 20.1404(b) (2004), Roberson requires the RO and the Board to “fully and

sympathetically” develop a veteran’s pro se CUE motion “to its optimum before deciding

it on the merits.” Roberson, 251 F.3d at 1384. Quite simply, the VA’s duty to

sympathetically read a veteran’s pro se CUE motion to discern all potential claims is

antecedent to a determination of whether a CUE claim has been pled with specificity.

04-7155 8
We trust that, after this clarification, the Veterans Court will have no difficulty in applying

Roberson correctly in future cases.

However, although Roberson applies to pro se CUE motions, it does not apply to

pleadings filed by counsel. As we have consistently held, Roberson applies “with

respect to all pro se pleadings,” Szemraj, 357 F.3d at 1373 (emphasis added), but

“apart from the requirement that a pro se veteran’s pleadings be read sympathetically,

our decision in Roberson did not change the well-established legal standard for

determining the existence of CUE in RO and [Board] decisions.” Id. at 1375. Because

it is not disputed that Andrews filed his 1995 CUE motion through counsel, Roberson is

inapplicable here. Thus while the Veterans Court misunderstood our holding in

Roberson, it ultimately did not err in holding that Roberson did not apply in this case.

The Veterans Court’s miscomprehension was harmless error. See id.

Failure to raise an issue in a CUE motion filed by counsel before the Board is

fatal to subsequently raising the issue before the Veterans Court. As we held in Andre

v. Principi, 301 F.3d 1354 (Fed. Cir. 2002):

Because a CUE claim involves an allegation of an error with “some degree
of specificity,” a veteran’s assertion of a particular clear and unmistakable
error by the RO constitutes a distinct claim. For that reason, we cannot
accept the proposition that Mr. Andre’s original CUE claim . . . effectively
encompassed all potential allegations of clear and unmistakable error in
the RO’s decision.

Id. at 1361 (emphasis added). We then held that “as far as the CUE claims that Mr.

Andre raised for the first time before the Veterans Court were concerned, [the] . . .

jurisdictional prerequisite of a Board decision concerning the matter being appealed”

had not been satisfied. Id. at 1362 (internal quotations and alterations omitted).

04-7155 9
 In a letter filed under Rule 28(j) of the Federal Rules of Appellate Procedure in

response to questions at oral argument, Andrews suggests that Andre’s requirement

that CUE claims be raised before the Board with specificity is inconsistent with the

Supreme Court’s decision in Sims v. Apfel, 530 U.S. 103 (2000). Sims involved a

Social Security claimant who, during her appeal to the Social Security Appeals Council,

argued only that the Administrative Law Judge erred in analyzing evidence, but

subsequently urged during judicial review that the Administrative Law Judge had erred

by asking defective questions to witnesses and in failing to order a consultative

examination. Id. at 105-06. The Supreme Court granted review to consider “whether a

claimant pursuing judicial review has waived any issues that he did not include” in a

request for review by the Social Security Appeals Council. Id. at 105. The Court held

that failure to raise issues in a request for review did not result in waiver. Id.

We have previously held that Sims is inapplicable to proceedings before the

Veterans Court, because those proceedings are adversarial in nature. Forshey v.

Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002) (en banc). However, proceedings before

the Board, like those before the Social Security Appeals Council, are non-adversarial.

Id. We nonetheless conclude that the requirement that litigants before the Board raise

arguments in a CUE motion with specificity in order to preserve them for appeal in the

Veterans Court is not inconsistent with Sims.

First, the decision in Sims relied heavily on the fact that “SSA regulations do not

require issue exhaustion,” 530 U.S. at 108, and concluded that “a judicially created

issue-exhaustion requirement is inappropriate,” id. at 112 (plurality opinion); see id. at

113 (O’Connor, J., concurring) (“In the absence of a specific statute or regulation

04-7155 10
requiring issue exhaustion, however, such a rule is not always appropriate.”). In

contrast, the Sims Court noted that “it is common for an agency’s regulations to require

issue exhaustion in administrative appeals,” and that such regulatory exhaustion

requirements were permissible. Id. at 108. As an example of a regulation that

“require[s] issue exhaustion in administrative appeals,” the Court quoted 20 C.F.R.

§ 802.211(a), which requires an appellant to the Department of Labor Benefits Review

Board4 to “list[ ] the specific issues to be considered on appeal [to the Board].” 20

C.F.R. § 802.211(a) (2005); see Sims, 530 U.S. at 108. Section 802.211(a) is

indistinguishable from the VA regulation that requires CUE claims to be pled with

specificity. Section 20.1404(b) of Title 38 of the Code of Federal Regulations states:

The [CUE] motion must set forth clearly and specifically the alleged clear
and unmistakable error, or errors, of fact or law in the Board decision, the
legal or factual basis for such allegations, and why the result would have
been manifestly different but for the alleged error.

38 C.F.R. § 20.1404(b) (2004). We upheld the specificity requirement of this regulation

in Disabled American Veterans v. Gober, 234 F.3d 682, 699 (Fed. Cir. 2000). Because

the pertinent regulations require a CUE motion to be pled with specificity, there is no

“judicially created issue-exhaustion requirement,” and the regulatory requirement for

exhaustion is not inconsistent with Sims.

Second, the requirement that CUE claims be pled with specificity is consistent

with Sims because there is no question of “whether a claimant pursuing judicial review

has waived any issues that he did not include” in the CUE motion. Sims, 503 U.S. at

105 (emphasis added). A Board decision reaches only the specific assertions of CUE

4
The Benefits Review Board hears appeals of worker’s compensation
claims arising under the Longshore and Harbor Workers’ Compensation Act and various

04-7155 11
that are raised. Andre, 301 F.3d at 1361. Thus Andrews’ failure to claim CUE based on

TDIU does not waive such a claim—it only delays its adjudication to a time when it is

properly raised. See Disabled Am. Veterans, 234 F.3d at 699 (Board cannot deny a

CUE claim with prejudice for failure to plead with specificity). Andrews remains free to

claim that he had raised TDIU in the 1983 and 1985 applications in a new CUE motion,

and judicial review remains available after the Board has ruled on the claim.

CONCLUSION

In sum, we hold that (1) Roberson requires the RO and the Board to

sympathetically read all pleadings filed pro se, including CUE motions; (2) Roberson

does not require sympathetic reading of pleadings filed by counsel; (3) when the VA

violates Roberson by failing to construe the veteran’s pleadings to raise a claim, such

claim is not considered unadjudicated but the error is instead properly corrected through

a CUE motion; and (4) failure to raise an issue in a CUE motion filed by counsel before

the VA is fatal to subsequently raising the issue before the Veterans Court.

Accordingly, the judgment of the Veterans Court is affirmed.

AFFIRMED

No costs.

other statutes. 20 C.F.R. 801.102 (2005).

04-7155 12