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United States Court of Appeals for the Federal Circuit
04-7034
TIMOTHY J. JORDAN,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
Helen S. Irza, Morrison & Foerster LLP, San Diego, California, argued for
claimant-appellant. On the brief was Ronald L. Smith. Of counsel was Donald E.
Purcell, Disabled American Veterans, of Washington, DC.
Martin F. Hockey, Jr., Senior Trial Counsel, 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 and David M. Cohen, Director. Of counsel on the brief were Michael J.
Timinski, Deputy Assistant General Counsel and David J. Barrans, Staff Attorney,
United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Jonathan R. Steinberg
United States Court of Appeals for the Federal Circuit
04-7034
TIMOTHY J. JORDAN,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
___________________________
DECIDED: March 15, 2005
___________________________
Before NEWMAN, RADER, and BRYSON, Circuit Judges.
RADER, Circuit Judge.
The Court of Appeals for Veterans Claims (Veterans Court) affirmed the
Board of Veterans’ Appeals’ (Board’s) decision, which rejected Timothy Jordan’s
claim. Mr. Jordan had asserted that a 1983 Board decision denying him service
connection status on a knee disorder contained clear and unmistakable error
(CUE). Jordan v. Principi, No. 00-206 (Vet. App. Sept. 24, 2003). Because the
Veterans Court correctly determined that CUE does not arise from a change in
the interpretation of a statute, this court affirms.
I.
Mr. Jordan served in the military for one month and nineteen days, from
November 1969 through January 1970. Fifteen months before entering service,
Mr. Jordan suffered left and right knee injuries from a motorcycle accident. Mr.
Jordan’s medical entrance examination report records a scar below the left knee
but otherwise makes no mention of these injuries. Less than one month after
service entry, Mr. Jordan complained of right knee pain, which a doctor
diagnosed as chondromalacia patella. The military discharged Mr. Jordan in
January 1970.
In August 1981, Mr. Jordan filed for service connection status on his right
knee injury with the VA regional office (RO). The RO denied this claim in
November 1981. The RO concluded that Mr. Jordan’s right knee injury predated
his service entry, and that his service had not aggravated that injury. Mr. Jordan
then appealed the RO decision to the Board. The Board affirmed the RO’s
decision in April 1983 finding “clear and unmistakable evidence that the veteran
suffered a right kneecap trauma prior to entrance on active service.” Additionally,
the Board determined that “[d]uring the veteran’s period of service there was no
increase in the severity of his preexisting right knee disorder.”
In 1999, Mr. Jordan filed a CUE claim disputing the 1983 Board decision.
In November 1999, the Board ruled that there was no CUE in its 1983 decision.
In so holding, the Board noted that “there was more than adequate evidence
showing that the veteran’s right knee disorder underwent no permanent increase
in severity during his period of active service.” Mr. Jordan next appealed the
1999 Board ruling to the Court of Appeals for Veterans Claims. Mr. Jordan
argued that the 1983 Board decision misinterpreted provisions in 38 U.S.C.
§ 1111 that govern the presumption of soundness. In particular, Mr. Jordan
contended that the 1983 Board decision did not require the Government to rebut
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the presumption of soundness with clear and unmistakable evidence that his
disability was not aggravated during service. While Mr. Jordan’s Veterans Court
appeal was pending, the VA’s General Counsel issued an opinion stating that 38
C.F.R. § 3.304, the VA regulation that implements section 1111, conflicted with
the language of section 1111. Nevertheless, in 2003, the Veterans Court
affirmed the 1999 Board decision, finding no CUE because CUE “does not
include the otherwise correct application of a statute or regulation where,
subsequent to the Board decision challenged, there has been a change in the
interpretation of the statute or regulation” under 38 C.F.R. § 20.1403(e).
II.
This court has jurisdiction to review Veterans Court decisions on issues of
law under 38 U.S.C. § 7292. Szemraj v. Principi, 357 F.3d 1370, 1374-75 (Fed.
Cir. 2004) (citation omitted). This court reviews the asserted legal error without
deference. Id. at 1372.
On appeal, Mr. Jordan contends that 38 C.F.R. § 3.304, the VA regulation
implementing section 1111, is void ab initio. Mr. Jordan notes that the VA
interpreted section 1111 contrary to its facially apparent meaning. As such, Mr.
Jordan would have this court hold that invalidation of this regulation can
retroactively affect final decisions, unlike a new interpretation of a regulation,
which “can only retroactively [a]ffect decisions still open on direct review, not
those decisions that are final.” Disabled Am. Veterans v. Gober, 234 F.3d 682,
698 (Fed. Cir. 2000).
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The Government responds that this court’s decision in Gober, interpreting
38 C.F.R. § 20.1403(e), controls this issue of retroactive application of an
erroneous regulatory interpretation. The Government further notes that even
later-invalidated statutes and regulations do not have retroactive effect under
U.S. Supreme Court precedent. Finally, the Government contends that even if
invalidated regulations did have retroactive effect, the VA regulation in question
is not void ab initio because section 1111 is ambiguous when read in light of
section 1153.
The VA regulation in question, Section 3.304(b), provides:
The veteran will be considered to have been in sound condition
when examined, accepted and enrolled for service, except as to
defects, infirmities, or disorders noted at entrance into service, or
where clear and unmistakable (obvious or manifest) evidence
demonstrates that an injury or disease existed prior thereto. Only
such conditions as are recorded in examination reports are
considered as noted.
(Emphasis added.)
In contrast, section 1111 provides:
For the purposes of section 1110 of this title, every veteran shall be
taken to have been in sound condition when examined, accepted,
and enrolled for service, except as to defects, infirmities, or
disorders noted at the time of the examination, acceptance, and
enrollment, or where clear and unmistakable evidence
demonstrates that the injury or disease existed before acceptance
and enrollment and was not aggravated by such service.
(Emphasis added.)
Section 3.304(b), when compared to section 1111, notably omits the
requirement of clear and unmistakable evidence for aggravation of an injury.
This court recently held that section 1111 requires that “the Government must
04-7034 4
show clear and unmistakable evidence of both a preexisting condition and a lack
of in-service aggravation to overcome the presumption of soundness for wartime
service.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
This appeal does not question again the correct legal standard under
section 1111. Wagner governs that issue. Rather, this case asks whether the
change in legal standards in the interpretation of the regulations should
retroactively affect CUE claims. Mr. Jordan seeks to avoid this court’s precedent
in Gober, arguing that the prior, now invalid, regulation was void ab initio and
therefore did not really exist at the time of his entry. Thus, Gober would not
apply to this case.
Although creative, Mr. Jordan’s argument finds no legal support. Mr.
Jordan fails to recognize that there was a change in interpretation of section
1111 with the issuance of the opinion by the VA’s General Counsel stating that
38 C.F.R. § 3.304 conflicted with the language of section 1111. Wagner, 370
F.3d at 1092. Mr. Jordan believes that section 3.304 was inaccurate in setting
forth the proper legal standard and that it was void ab initio. However, the
accuracy of the regulation as an interpretation of the governing legal standard
does not negate the fact that the regulation did provide the first commentary on
section 1111, and was therefore the initial interpretation of section 1111. Hence,
Gober applies to the change in interpretation of that statute as affected by the
issuance of the General Counsel’s opinion.
First, 38 C.F.R. § 20.1403(e) plainly states: “Clear and unmistakable error
does not include the otherwise correct application of a statute or regulation
04-7034 5
where, subsequent to the Board decision challenged, there has been a change in
the interpretation of the statute or regulation.” This court in Gober has affirmed
that rule: “The new interpretation of a statute can only retroactively [a]ffect
decisions still open on direct review, not those decisions that are final.” Gober,
234 F.3d at 698. In this case, the interpretation of the regulation has indeed
changed, but because the 1983 Board decision was final, Mr. Jordan has no
recourse for appeal through a CUE claim; 38 C.F.R. § 20.1403(e) clearly
proscribes Mr. Jordan’s claim.
Moreover, Mr. Jordan’s void ab initio argument does not give adequate
weight to the finality of judgments. The Supreme Court has repeatedly denied
attempts to reopen final decisions in the face of new judicial pronouncements or
decisions finding statutes unconstitutional. See, e.g., Reynoldsville Casket Co. v.
Hyde, 514 U.S. 749, 752 (1995) (new judicial interpretations of a statute apply to
“all pending cases”); Chicot County Drainage Dist. v. Baxter State Bank, 308
U.S. 371, 374-75 (1940) (upholding a decision that was based on a statute later
found unconstitutional). Thus, even in the extreme instance of unconstitutional
application of a statute, the Supreme Court does not supply a retroactive remedy
for final judgments.
In sum, Mr. Jordan’s void ab initio argument has no legal support and
does not accord sufficient respect to a final judgment. Accordingly, this court
affirms the Veterans Court’s determination that CUE does not arise from a new
regulatory interpretation of a statute.
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COSTS
Each party shall bear its own costs.
AFFIRMED
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