Lasovick v. Brown

IVERS, Judge,

concurring in part and dissenting in part:

I write to concur in the Court’s opinion in parts II.A. and II.C., but to dissent from the Court’s opinion in part II.B.l, 2, and 3. Having resolved the only issue before the Court — service connection under 38 U.S.C.A. § 1112(c) (West 1991), the majority’s opinion should have ended at that point. Ante at 146^17. Instead, the majority proceeds down a separate and unnecessary path by opining as to the applicability of Combee v. Principi 4 Vet.App. 78, denying motion for review sub nom., Combee v. Brown, 5 Vet.App. 248 (1993) (en bane), and a regulation recently promulgated by the Secretary, 38 C.F.R. § 3.311b(h) (1993). Ante at 149-52. From that point forward, the opinion contains nothing but dicta, and those dicta consist entirely of the continued musings of the two judges of this Court who dissented from the Court’s order denying en banc review of Combee. In that part of the opinion from which I dissent, the majority goes to great lengths to achieve a result we all might like to see; however, the majority has failed to take into account the full effect on this case of the holding in Spencer v. Brown, 4 Vet.App. 283 (1993). In so doing, the majority creates the sort of “stew” that Justice Frankfurter cautioned against in Bisso v. Inland Waterways Corp., 349 U.S. 85, 100, 75 S.Ct. 629, 637, 99 L.Ed. 911 (1955), where he stated, “A stew may be a delicious dish. But a stew is not to be made in law by throwing together indiscriminately decision and dicta....” The majority opinion unnecessarily decides whether Combee and 38 C.F.R. § 3.311b(h) are applicable to the facts of this case. Couching this part of the decision in the guise of dicta, ante at 149-52, the majority attempts to avoid the perception that it is reaching for a particular result in a case that is not suited to such a result. While the majority may well be correct in its dicta, insofar as it emphasizes the fact that the language used in deciding Combee may be overly broad, this Court, like all courts, will have ample opportunity to deal with the issue *153when an appropriate case is presented to it. This is not that case. Having failed in Corn-bee to attract any support for their minority view through reason, the proponents here try to establish that view by force as “dicta” in the majority opinion of a panel. See id., 5 Vet.App. at 248 (Kramer and Steinberg, JJ., dissenting from the per curiam order denying en bane review).

The danger of these dicta is that, although theoretically and technically not binding, practically, they give the appearance of carrying the cloak of judicial acceptance. As one scholar has stated, “Much depends on the character of the dictum. Mere obiter may be entitled to little weight, while a carefully considered statement ..., though technically dictum, must carry great weight, and may even ... be regarded as conclusive.” Chaeles A. Wright, The Law of FedeRal Courts § 58, at 374 (4th ed. 1983); see also McCoy v. Massachusetts Institute of Technology, 950 F.2d 13, 19 (1st Cir.1991) (giving effect to considered dictum of the Supreme Court). The majority should heed its own cautions and not make overly broad pronouncements that are neither warranted by the facts of this specific case nor supported by a majority of the full Court. See ante at 149 (citing and quoting Zenith Radio Corp. v. United States, 437 U.S. 443, 462, 98 S.Ct. 2441, 2451, 57 L.Ed.2d 337 (1978); Wright v. United States, 302 U.S. 583, 593, 58 S.Ct. 395, 399, 82 L.Ed. 439 (1938); Osaka Shosen Kaisha Line v. United States, 300 U.S. 98, 57 S.Ct. 356, 81 L.Ed. 532 (1937); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 399, 5 L.Ed. 257 (1821); Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700, 708 n. 8 (Fed.Cir.1992); Smith v. Orr, 855 F.2d 1544, 1550 (Fed.Cir.1988)). Through its dicta, the majority seeks to dictate the result of any remand to the Board.

This case was before the Board solely for the limited purpose of applying a possibly liberalizing statutory provision, 38 U.S.C.A. § 1112(c) (West 1991), to this particular set of facts. The majority holds that the liberalizing law does not apply to this particular set of facts. Ante at 146-47. That, in my opinion, should be the end of the matter. To go any further simply flies in the face of Spencer; the attempt to get around these issues by manufacturing a reopened claim for direct service connection relies on a dangerously thin strand of suppositions culminating in a finding that appellant may have submitted new and material evidence. The issue of direct service connection was finally decided in 1985 and neither the claimant, the Board, nor this Court, despite the valiant efforts of the majority, can manufacture valid evidence or procedure from this record which would give rise to a reopening.

Having previously decided the issue of direct service connection, the Secretary could not reopen the claim absent new and material evidence pertaining to that claim. The Court recently reprised the longstanding case law regarding reopening of claims:

Under 38 U.S.C.A. § 7104(b) (West 1991), a final decision by the BVA on a given claim “may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.” One exception to the § 7104(b) rule is 38 U.S.C.A. § 5108 (West 1991) which states, “If 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.”

Moray v. Brown, 5 Vet.App. 211, 213 (1993). See also Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991).

The majority opinion gives short shrift to the fact that in 1989, the RO, acting on its own initiative, revisited appellant’s claim for dependency and indemnity compensation for a very narrow and limited purpose, i.e., entitlement to service connection for the cause of the veteran’s death under a newly enacted law, the Radiation-Exposed Veterans Compensation Act of 1988, Pub.L. No. 100-321, 102 Stat. 485 (1988) (currently codified at 38 U.S.C.A. § 1112(c) (West 1991)). In Spencer, the Court explained very clearly when a previously and finally denied claim may be reviewed based upon an intervening change in a law or regulation.

The entitlement to de novo review of a previously and finally denied claim based upon an intervening change in law or regu*154lation creating a new entitlement derives from the new law or regulation itself. When a provision of law or regulation creates a new basis of entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit, an applicant's claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation. The applicant’s latter claim, asserting rights which did not exist at the time of the prior claim, is necessarily a different claim. See, e.g., Sawyer v. Derwinski, 1 Vet.App. 130, 133 (1991). Section 7104(b) provides that “when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.” Where a claim is based upon a substantive right created by a statutory or regulatory provision that did not exist at the time of the prior final denial of the claim, adjudication of the latter claim is not a “reopening” of the first, such as would be prohibited, absent new and material evidence, by section 7104(b).

Spencer, 4 Vet.App. at 288-89 (emphasis added). Although the Court in Spencer did not find the statute in question there to be a liberalizing law, the Court made clear that a liberalizing law may create a new claim for benefits. Ibid. Because the claim at issue in the instant case was founded solely on a “new basis of entitlement to a benefit,” it was a separate and distinct claim from the previously adjudicated claims. The Spencer Court reasoned that “the fact of the intervening change in law is itself sufficient to change the factual basis such that the latter claim is not ‘a claim based upon the same factual basis’ as the former claim.” Id. at 289. The direct consequence of this reasoning is that a possibly liberalizing law or intervening change in the law creates a basis for a new, separate, distinct claim, and not for a reopened claim, since the factual basis of the previously decided claim has not changed at all.

The majority points to the RO’s June 1989 Deferred or Confirmed Rating Decision sheet, appellant’s July 1989 Notice of Disagreement (NOD), appellant’s representative’s statements at the January 1990 personal hearing, the RO Hearing Officer’s May 1990 decision, the BVA’s December 1990 remand for the issuance of a Supplemental Statement of the Case (SSOC), the January 1991 SSOC, and appellant’s representative’s May 1991 letter to the Board for the proposition that the RO, the Board, and appellant all framed the issue as a resubmitted claim for direct service connection under 38 C.F.R. §§ 3.309(d) and 3.311b. Ante at 147. The majority’s labored characterization of the various steps in the RO’s and the BVA’s adjudication as encompassing a resubmitted claim is erroneous. The references therein to the lack of new and material evidence to reopen the direct service connection claim underscore the fact that the RO undertook a review of the circumstances of the veteran’s death only for the purposes of a determination of entitlement to service connection under the Radiation-Exposed Veterans Compensation Act of 1988, codified at 38 U.S.C.A. § 1112(c), and not because there was an issue involving newly submitted evidence pertaining to the previously denied direct service connection claim.

In addition, the majority’s characterization of testimony at a January 1990 hearing by appellant’s service representative as a claim to reopen, ante at 147, is not correct. Although the service representative contended that the veteran’s lymphoma “was caused by the plutonium or radiation exposure causing his death,” R. at 1110, it is clear from the context of the hearing that the representative was trying to establish that the veteran was a “radiation-exposed veteran” within the meaning of 38 U.S.C.A. § 1112(e) and not to reopen the previously decided claims. At no point during the hearing did appellant or her service representative mention the prior denial or seek to reopen the prior denial. The context of this proceeding was a review of the circumstances of the veteran’s death for a determination of eligibility under 38 U.S.C.A. § 1112(c). To read a claim to reopen a previously denied claim into this context would impose a duty upon the Secretary to resurrect and decide issues that were never intended by Congress to be thrust upon *155the VA in the Radiation-Exposed Veterans Compensation Act of 1988. The majority could certainly not find such a duty in the legislative history of the Act as there is no such support in that history for such a finding.

The majority neglects to consider not only that appellant’s case was reopened for a narrow, limited purpose — i.e., a determination of eligibility under 38 U.S.C.A. § 1112(c) — but also that the July 1989 NOD predated any hint that appellant may have been seeking to reopen the claim for direct service connection under 38 C.F.R. §§ 3.303(d) or 3.311b. Therefore, appellant could not have disagreed with an issue that was not raised until the January 1990 hearing — and it is apparent, as discussed above, that a claim to reopen was not raised even in the January 1990 hearing. By analogy to Hamilton v. Brown, 4 Vet.App. 528 (1993) (en banc), there the Court held:

[Wjhere the BVA remands to an RO for development and adjudication a claim not decided by the RO (and as to which no NOD has ever been filed, and which thus is not an appealed claim) and the claimant files a timely expression of disagreement with the RO, that expression is an NOD as to that claim, which then becomes an appealed claim, even though the BVA may also have remanded to the RO concurrently a claim which had been previously decided by the RO, as to which a prior NOD had been timely filed, and which thus was already an appealed claim.

Id. at 538-39 (boldface italics added). Although this holding in Hamilton certainly involved a remand by the BVA, the analysis is the same: where other issues are raised subsequent to an RO’s adjudication and an NOD filed thereupon, the NOD with respect to those issues is not the same as the NOD that commenced the appeal. Where Hamilton gave some clarity, the majority here, by implication, takes that away.

Regardless of the majority opinion’s characterization of the RO’s adjudication or appellant’s and her representative’s statements and testimony as referring to a resubmitted claim, the majority ignores the indisputable jurisdictional impact of a previously and finally denied claim. As this Court articulated in McGinnis v. Brown, 4 Vet.App. 239, 244 (1993),

jurisdiction does indeed matter and it is not “harmless” when the VA during the claims adjudication process fails to address threshold jurisdictional issues. This is particularly true when the Secretary ignores the mandates of 38 U.S.C.A. §§ 7104(b) and 7105(e) (West 1991) which provide that finally denied claims cannot be reopened without the submission of “new and material evidence”....

Here, the parties have pointed out what evidence may or may not have been newly submitted to the VA after the 1985 RO decision. At oral argument, counsel for the Secretary stated that only a one-page resume of the veteran’s career and testimony proffered at the January 1990 personal hearing were newly submitted. Counsel for appellant indicated that the newly submitted evidence could possibly have consisted of exposure records from Los Alamos. The personal hearing testimony was cumulative of appellant’s previously submitted contentions regarding the cause of the veteran’s malignant lymphoma. The Los Alamos laboratory exposure estimates were submitted on the issue of whether the veteran qualified as a “radiation-exposed veteran” under 38 U.S.C.A. § 1112(c), the recently enacted law. None of this evidence is new and material to a claim for direct service connection given the context in which it was submitted: the veteran’s exposure to ionizing radiation and participation in radiation-risk activity, as defined under section 1112(c)(4) (West 1991).

The majority also quotes at length from an August 1979 affidavit from Dr. John Gofman as possibly having been submitted subsequent to the RO’s 1985 decision. Ante at 144-45. This document clearly predated chronologically the RO’s 1985 decision. The majority states that no document of record associated with the RO’s 1985 decision refers to this affidavit. Ante at 145. However, the majority points to a September 1989 VA Form 1-9 (Appeal to the BVA), which appealed the RO’s 1989 denial on the basis of “data available in files available to the government, and in files held by attorney Alan *156Einhorn- Mr. Einhorn is transferring information from his files to ... my representative from the Jewish War Veterans.” Ibid, (quoting R. at 1125). This statement is equivocal at best since it refers to data already available to the government. Nevertheless, even if the August 1979 affidavit were submitted subsequent to the RO’s 1985 decision, the affidavit is not sufficient to reopen the claim for direct service connection. In Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the Court held that a claim was not well grounded where the only evidence in support of that claim was a physician’s statement that a “veteran’s death may or may not have been averted.” See also Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (“ ‘New and material evidence’ is, by its nature, well-grounded, i.e., evidence that, if believed, would provide a ‘reasonable possibility’ that the outcome would be changed.”). Similarly, the affidavit in question here discusses a link between ionizing radiation and lymphoma but does not indicate that this veteran’s lymphoma was indeed caused by in-service exposure to ionizing radiation. Although the majority opinion quotes at length from the 1979 affidavit, ante at 144-45, it does not adequately assess the most telling part of that affidavit, which stated: “The estimation of the risk of lymphoma induction from plutonium exposure in Mr. Lasovick will become possible through resolution of the quantity taken in, through the process of discovery and possibly through tissue analysis.” R. at 1064 (emphasis added). Thus, having discussed the risk that ionizing radiation may cause lymphoma and other cancers, Dr. Gofman, in effect, stated that he did not know the risk of induction of lymphoma for the veteran.

On the basis of the record, the Court can make a determination as to the newness and materiality of the evidence without manipulating the record to arrive at a conclusion that some evidence predating the 1985 RO decision may have been submitted subsequent to that decision.

The majority opinion goes even further. In examining the applicability or inapplicability of Combee, the majority essentially decides a case that is not yet, and might never be — at least as far as this particular case is concerned — at issue before the Court. Under 38 U.S.C.A. § 7252(a) (West 1991), “[t]he Court of Veterans Appeals shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals.” Here, there is no decision regarding a resubmitted claim for direct service connection; there is only a claim, raised sua sponte by the VA, for presumptive service connection under the then newly enacted 38 U.S.C.A. § 1112(c). For the majority to delve into the substantive law regarding a resubmitted claim for direct service connection at this juncture, in effect creates and then decides an issue without benefit of the normal process whereby issues are raised and decided below and the results are then advanced by the parties for review in this Court.

Here, the majority’s remand to the BVA for a determination of whether new and material evidence was submitted to reopen the claim for direct service connection would result in “an ongoing agency proceeding,” meaning that the agency has not yet completed its decisionmaking process. For the Court to opine on the applicability of Combee at this point is altogether premature. By analogy to the Administrative Procedure Act, 5 U.S.C.A. § 701 et seq. (West 1977), which provides for judicial review of “final agency action for which there is no other adequate remedy in a court,” id. at § 704, a reviewing court charged with determining when an agency action is final looks to whether the action’s “impact ‘is sufficiently direct and immediate’ and has a ‘direct effect on ... day-to-day business.’” Franklin v. Massachusetts, - U.S. -, -, 112 S.Ct. 2767, 2773, 120 L.Ed.2d 636 (1992) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 152, 87 S.Ct. 1507, 1517, 18 L.Ed.2d 681 (1967)). “The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.” Franklin, — U.S. at -, 112 S.Ct. at 2773; see also Molins PLC v. Quigg, 837 F.2d 1064, 1067 (Fed.Cir.1988) (in resolving issue of fitness for judicial review, court must determine if challenged action raises purely legal questions, which renders action presumptively fit for review “unless the courts or agency *157would benefit from postponement of review until the agency’s policy has crystallized or the question arises in a more concrete setting”) (emphasis added); Public Citizen Health Research Group v. Commissioner, Food & Drug Administration, 740 F.2d 21, 30 (D.C.Cir.1984) (although Supreme Court has instructed courts to apply finality and ripeness doctrines flexibly, “[e]ven this flexibility will not usually suffice ... to permit judicial resolution of substantive issues that are the subject of an ongoing agency proceeding.”); see generally State Farm Mut. Auto Ins. Co. v. Dole, 802 F.2d 474, 479 (D.C.Cir.1986) (in discussing ripeness doctrine, Court of Appeals for the District of Columbia Circuit noted that “courts and agencies have a legitimate interest in avoiding adjudication of speculative controversies.”). The affirmance of the Board’s denial of service connection under 38 U.S.C.A. § 1112(c) is the end of the inquiry, and there is no reason to go any further. Even if there were a question about what evidence, if any, was submitted subsequent to the 1985 RO decision, the majority could have simply ended by remanding to the Board for a determination of whether any evidence was submitted after 1985. Clearly, the newness and materiality of evidence, if any was in fact submitted after the 1985 RO decision, is an issue that the VA and the BVA have never been called upon to address. As previously discussed, the majority goes far beyond this remedy by attacking Combee and attempting to further influence the result of the remand.

Whether or not Combee is applicable to the facts of this case, the majority’s cavalier treatment of the substantive holdings of Spencer and Hamilton, in essence, overrules them. It is not appropriate for a panel to do so. See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992); see also Tobler v. Derwinski 2 Vet.App. 8, 14 (1991) (“[A] decision of this Court, unless or until overturned by this Court en banc, the United States Court of Appeals for the Federal Circuit, or the Supreme Court, is a decision of the Court on the date it is issued; any rulings, interpretations, or conclusions of law contained in such a decision are authoritative and binding ... ”); see, e.g., Butts v. Brown, 5 Vet.App. 532, 540 (1993) (en banc) (overruling in part, inter alia, McGrath v. Brown, 5 Vet.App. 57 (1993), and Horowitz v. Brown, 5 Vet.App. 217 (1993)); but see Dupont Circle Citizens Ass’n v. D.C. Board of Zoning Adjustment, 403 A.2d 314, 318 (D.C.1979) (panel of the District of Columbia Court of Appeals overturned prior decision without resorting to formal en banc procedure where no member of the Court had requested formal en banc consideration and had not objected to Court’s holding).

The case before the RO was strictly limited to appellant’s eligibility under the recently enacted and codified 38 U.S.C.A. § 1112(c). The majority now imposes a duty on the Secretary to adjudicate issues which have been previously reviewed and which are beyond the scope of a new entitlement when an RO or the Board reviews de novo a claim on the basis of a liberalizing law or regulation. In the Radiation-Exposed Veterans Compensation Act of 1988, Congress did not direct the Secretary to seek out all possible claimants and to adjudicate de novo any such claims. Cf. Mason v. Derwinski, 2 Vet.App. 487, 488 (1992) (voluntary department-wide review of World War II and Korean War veterans’ claims did not obligate Secretary to award effective date as of the date the review began). The majority, in effect, penalizes the Secretary for having conducted a de novo review of appellant’s claim in light of a possibly liberalizing, newly enacted statute. What effect this will have on the Secretary’s initiative in identifying and adjudicating claims based on new entitlements remains to be seen. Again, I dissent.