ࡱ> XZWq cRbjbjt+t+ !nAAF]8>,j$$pnBnnn@nnF~;8Lx:4sXDepartment of Memorandum Veterans Affairs Date: July 6, 2001 VAOPGCPREC___12-2001 From: General Counsel (022) Sub: Robinerson v. Principi, No. 00-7009, 2001 U.S. App. LEXIS 11008 (Fed. Cir. May29, 2001) To: Chairman, Board of Veterans Appeals (01) Under Secretary for Benefits (20) QUESTION PRESENTED: What did the United States Court of Appeals for the Federal Circuit hold in Roberson v. Principi, No. 00-7009, 2001 U.S. App. LEXIS 11008 (Fed. Cir. May29, 2001)? COMMENTS: 1. On May 29, 2001, the United States Court of Appeals for the Federal Circuit issued Howard F. Roberson v. Anthony J. Principi, Secretary of Veterans Affairs, No. 00-7009, 2001 U.S. App. LEXIS 11008 (Fed. Cir. May 29, 2001). Mr.Roberson appealed a July27, 1999, decision of the United States Court of Appeals for Veterans Claims (CAVC), Howard F. Roberson v. Togo D. West, Jr., Secretary of Veterans Affairs, Vet. App. No.97-1971, 1999 U.S. App. Vet. Claims LEXIS 997 (CAVC July27, 1999). The CAVCs decision affirmed the July7, 1997, decision of the Board of Veterans Appeals (Board) that determined that there was no clear and unmistakable error (CUE) in a 1984 regional office decision that established service connection for post-traumatic stress disorder and assigned a 70% disability rating. The CAVC concluded that there was ample evidence contained in the record before the regional office in January 1984 to reasonably conclude that Mr. Roberson was not unemployable. Roberson, 1999 U.S. Vet. Claims LEXIS 997, at *10. The CAVC found that, although Mr.Robersons condition seemed to impair his ability to remain gainfully employed, there was sufficient evidence of record at the time of the regional office decision to reasonably conclude that he was not 100% unemployable. Id., at*11. The CAVC further found that, if the regional office had applied 38C.F.R. 3.340, it is not clear that the outcome of the January 1984 decision would have been manifestly different, and therefore rejected Mr.Robersons argument that his 100% rating in October 1990 is evidence that the January 1984 regional office decision contained CUE. Id., at *11-12. With regard to Mr. Robersons contention that VA erred pursuant to 38 C.F.R. 3.155(a), the CAVC stated that a claimant is still required, even in an informal claim, to communicate a request that a determination of entitlement be made or communicate a belief of entitlement, which Mr.Roberson did not do. Id., at*12-13. The CAVC concluded, that, as a result, there was no claim for total disability based upon individual unemployability (TDIU) before the regional office at the time of its January 1984 decision. Id., at*13. 2. On appeal to the Federal Circuit, Mr. Roberson argued for the first time that VA violated its duty to assist pursuant to former 38U.S.C. 5107(a) by failing to conclude, based upon a liberal reading of the record in his case, that there was evidence to support a claim for TDIU. Roberson, 2001 U.S. App. LEXIS 11008, at *12-13. Mr. Roberson also argued that the CAVC misinterpreted 38 C.F.R. 3.155(a) by concluding that there was no claim for TDIU before the regional office in 1984. Id., at *13. Finally, Mr. Roberson argued that the CAVC misinterpreted 38C.F.R. 3.340(a) by finding that he was not 100% unemployable in January 1984. Id., at *15. 3. Obviously, because in adjudicating similar cases VA is bound by the Federal Circuits holdings rendered in precedent decisions like Roberson, it is important that those holdings be accurately identified for VA personnel adjudicating claims. In most cases, the Courts holdings are readily discernible. In Roberson, two holdings are clear. First, the Court held that once, a a veteran: (1)submits evidence of a medical disability; (2)makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. 3.155(a) that an informal claim identify the benefit sought has been satisfied and VA must consider whether the veteran is entitled to TDIU. Id., at *1-2 and *14. Second, the Federal Circuit held in Roberson that a veteran does not have to prove that he or she is 100% unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38C.F.R. 3.340(a). Id., at*2 and *16. Other portions These two holdings are easily identifiable. 4. It is also important to recognize what the Federal Circuit did not hold in Roberson. Whether statements of the Court in Roberson, other than those discussed in paragraph 3 of this opinion, constitute holdings is difficult to evaluate. The difficulty arises because the Courts analysis in this regard sheds little or no light on the basis for these other statements. The Court cites no statutory or regulatory basis for them, does not attempt to explain their inconsistency with veterans benefits jurisprudence, nor support them with any logical analysis. of the Courts precedential decision are complex, and in order to avoid inconsistent decisionmaking by VA based upon potentially differing interpretations, we are providing the following analysis of the statements made in the Courts opinion to guide future adjudications. 54. Courts Statement that VA Has a Duty to Fully and Sympathetically Develop a Veterans Claim: The Federal Circuit stated in Roberson, 2001 U.S. App. LEXIS 11008, at*13, that VA has a duty to fully and sympathetically develop a veterans claim to its optimum before deciding it on the merits. The Courts statement regarding application of the duty to develop to CUE claims is inconsistent with at least one other Federal Circuit decision. As such it cannot and should not be interpreted to require VA to develop evidence to support a CUE claim. The Federal Circuit has previously held that a CUE claim must be based on the evidence in the record when the previous decision was rendered. Pierce v. Principi 240 F.3d 1348, 1353 (Fed. Cir. 2001); see also Disabled Am. Veterans v. Gober, 234 F.3d 682, 697 (Fed. Cir. 2000) (upholding 38 C.F.R. 20.1403(a) pertaining to revision of Board decisions based on CUE). Obviously, the duty to develop a CUE claim discussed in Roberson is inconsistent with the Pierce holding, which was not distinguished or otherwise mentioned by the Roberson Court. Moreover, we do not believe that this statement in Roberson should be interpreted as providing that failure of the duty to develop is a basis for finding CUE. The Federal Circuit did not identify any statute or regulation as the source of a duty to fully develop, and we are unaware of any statutory or regulatory basis for this duty. Because there is no statutory or regulatory basis cited by the Court for the duty to develop, VA could not have incorrectly applied a law and thereby generated a CUE in the 1984 decision. Accordingly, a breach of any duty to develop cannot be a basis for finding CUE in a prior claim decision. Cf. Hayre v. v. West, 188F.3d 1327, 1332-33 (Fed. Cir. 1999) (breach of duty to assist is not CUE); Disabled Am. Veterans, 234F.3d at 697 (upholding 38C.F.R. 20.1403(d)(2) stating that Secretarys failure to fulfill duty to assist is not basis for finding of CUE in Board decisions). 65. Courts Statement that Congress Has Mandated that VA Is To Fully and Sympathetically Develop the Veterans Claim to Its Optimum: In Roberson, 2001 U.S. App. LEXIS 11008, at*14, the Federal Circuit cited the legislative history of the Veterans Judicial Review Act (VJRA), Pub. L. No. 100-687, Div. A, 102Stat. 4105, 4122 (1988) in support of its statement that Congress has mandated that VA is to fully and sympathetically develop a veterans claim. See Norris v. West, 12 Vet. App. 413, 420 (1999). Further the Court stated that this duty to fully develop is separate from VAs duty to assist in developing the facts pertinent to a claim under former 38U.S.C. 5107(a). Roberson, 2001U.S. App. LEXIS 11008, at *13. The legislative history cited by the Federal Circuit refers to VAs duty to assist in the development of facts pursuant to former 38U.S.C. 5107(a). Thus, H.R. Rep. No.100-963, at 13 (1988), reprinted in 1988U.S.C.C.A.N. 5782, 5794-95, states in pertinent part: Implicit in such a beneficial system has been an evolution of a completely ex-parte system of adjudication in which Congress expects [the DVA] to fully and sympathetically develop the veterans claim to its optimum before deciding it on the merits. Even then, [the DVA] is expected to resolve all issues by giving the claimant the benefit of any reasonable doubt. The juxtaposition of the sentence regarding the reasonable-doubt doctrine with the preceding statement in the House report does not support the Courts conclusion that the duty to fully develop is distinct from the duty to assist. Rather, the fact that the reasonable doubt doctrine is found in 38U.S.C. 5107(b), and the duty to assist provision was contained in former 38U.S.C. 5107(a), supports the view that the duty to fully develop to which Congress referred in this report is in fact VAs duty to assist. 76. Courts Statement that VA Is Required to Consider a CUE Claim Using the Hodge Standard: In Roberson, 2001 U.S. App. LEXIS 11008, at *13-14, the Federal Circuit stated that in Hodge v. West, 155F.3d 1356 (Fed. Cir. 1998), which concerned a claim to reopen a previously disallowed claim based on new and material evidence pursuant to 38 U.S.C. 5108, the Court determined that Congress has mandated that VA has a duty to develop a claim to its optimum. Based on this analysis of the Hodge decision, the Court stated that VA is required to consider a CUE claim using the Hodge standard. Roberson, 2001U.S. App. LEXIS 11008, at *14. The Federal Circuits statement regarding application of the Hodge standard to CUE claims is not supported by the Courts actual holding in Hodge. Hodge dealt with a claim to reopen a VA decision based on new and material evidence pursuant to 38 U.S.C. 5108, but the Federal Circuit did not hold in Hodge that VA has a duty to fully develop claims filed pursuant to 38 U.S.C. 5108. Rather, the Court, citing the legislative history of the VJRA, which is cited in Roberson, concluded that the standard for materiality adopted by the CAVC in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) imposed on veterans a requirement inconsistent with the general character of the underlying statutory scheme for awarding veterans benefits. Hodge, 155F.3d at1362. Thus, the predicate for the Federal Circuits conclusion in Roberson that VA has a duty to develop CUE claims, which is based on Hodge, is inapposite. 87. Courts Statement that It Sees No Basis for Applying a Standard Different Than Hodge to a CUE Claim: The Federal Circuit also stated that it could see no basis for applying a different standard to a CUE claim than to a claim to reopen based on new and material evidence. Roberson, 2001 U.S. App. LEXIS 11008, at *14. Claims based on new and material evidence, however, are separate and distinct from CUE claims, and as a result, there are several reasons for applying different standards to CUE claims. In order to reopen a disallowed claim pursuant to 38U.S.C. 5108, a claimant must submit new and material evidence. New evidence is evidence that was not previously submitted to VA. 38 C.F.R. 3.156(a). Material evidence is evidence that bears directly and substantially upon the issue at hand and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. Id. In order to collaterally attack a decision pursuant to 38U.S.C. 5109A and 7111, on the other hand, a claimant must show that there was an outcome-determinative error in a previous claim decision. Bustos, 179 F.3d at 1381; 38 C.F.R. 20.1403(a). As explained above, a finding of CUE is based on the evidence in the record and the law at the time when the challenged decision was made. Pierce, 240 F.3d at1353; 38C.F.R. 20.1403(a). Because a finding of CUE must be based on the evidence in the record at the time of the challenged decision, unlike a finding of new and material evidence, VA does not have a duty to develop a claim alleging CUE because there is nothing further that could be developed. The record is closed. Also, the Federal Circuit has recognized that a claim collaterally attacking an otherwise final decision is completely different from an original claim for benefits, and that, in such a collateral attack, a claimant has the burden of proof. The Federal Circuit indicated in Hodge, 155 F.3d at1363-64, that a claimant bears the burden of submitting evidence sufficient to reopen a previously decided claim under section5108, and in Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir.), cert. denied, 528U.S. 967 (1999), the Court held that, in order to establish CUE, the claimant must show that an outcome-determinative error occurred with regard to the prior adjudication. Similarly, we believe that a duty to develop would not be applicable to a CUE claim because, as explained above, a CUE determination is based on the record as it existed when the claim was originally adjudicated, and it is a claimant who carries the burden of proving that VA committed a CUE in the prior decision. 98. Roberson Does Not Find CUE in the 1984 Regional Office Decision: Pursuant to 38U.S.C. 5109A and 38C.F.R. 3.105(a), a VA decision may be revised based upon CUE to reflect the true state of the facts or law that existed at the time the original decision was rendered. Russell v. Principi, 3Vet. App. 310, 313 (1992). Although the Federal Circuit found errors in the CAVCs decision, it did not identify any error made by VA with regard to the facts or law in the 1984 regional office decision, nor does the opinion refer to any error as CUE. Therefore, we do not believe that the Federal Circuit held that VA committed a CUE in adjudicating Mr. Robersons claim in 1984. 109. Because we do not believe there was a CUE in the 1984 VA decision, we recognize the Federal Circuits failure in Roberson to identify a CUE in that decision results in uncertainty as to the basis for challenging the 1984 decision. We do not believe, however, that the Federal Circuit found a nonstatutorily-authorized basis for reopening a previously decided claim based upon breach of the duty to fully develop. The Court specifically stated that Robersons [original service-connection] claim has been finally decided by the RO. Roberson, 2001U.S. App. LEXIS 11008, at*12. In addition, such a holding would be inconsistent with principles of finality which the Federal Circuit has acknowledged in several decisions. Disabled Am. Veterans, 234 F.3d at 702; Dittrich v. West, 163 F.3d 1349, 1351 (Fed. Cir. 1998), cert. denied, 526 U.S. 1088 (1999); Routen v. West, 142 F.3d 1434, 1437 (Fed. Cir.), cert. denied, 525 U.S. 962 (1998); Smith v. Brown, 35 F.3d 1516, 1520-21 (Fed. Cir. 1994); Spencer v. Brown, 17 F.3d 368, 371-72 (Fed. Cir.), cert. denied, 513U.S. 810 (1994). When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose. United States v. Utah Constr. & Mining Co., 384U.S. 394, 422 (1966); see also Restatement (Second) of Judgments 83 (1982). The Federal Circuit has recognized that basic principles of finality and res judicata apply to VA decisions which have not been appealed. Routen, 142 F.3d at 1437. The Court has stated that, [u]nless otherwise provided by law, the cases are closed and the matter is thus ended. Id. at 1438. As recognized by the Federal Circuit in Routen, there are currently only two statutorily-authorized means for reopening a finally decided VA benefit claim. Such a claim may be reopened based upon a showing of clear and unmistakable error in a prior decision by the Secretary or Board under 38U.S.C. 5109A and 7111, or based upon new and material evidence pursuant to 38 U.S.C. 5108. The Federal Circuit has also held that, under appropriate circumstances an intervening change in the applicable law may entitle a veteran to receive consideration of a claim, even though the claim is based on essentially the same facts as those in a previously adjudicated claim. Routen, 142 F.3d at 1438. This exception, however, is grounded on the theory that the subsequent claim is essentially a new claim, not a request for reconsideration of a previously disallowed claim. Routen, 142 F.3d at 1438; Spencer, 17 F.3d at 372-73. Inasmuch as there is no other statutory provision authorizing review of a previous claim decision, we do not believe that the Federal Circuit held in Roberson that failure of a duty to fully develop provides a basis for vitiating a final VA decision. Compare Hix v. Gober, 225 F.3d 1377, 1380 (Fed. Cir. 2000) (38 U.S.C. 1311 requires reexamination of final rating decisions to determine survivors entitlement to dependency and indemnity compensation). HELD: The only holdings in Roberson v. Principi, No. 00-7009, 2001 U.S. App. LEXIS 11008 (Fed. Cir. May29, 2001) are the following: Once a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. 3.155(a) that an informal claim identify the benefit sought has been satisfied and VA must consider whether the veteran is entitled to total disability based upon individual unemployability (TDIU). A veteran is not required to submit proof that he or she is 100% unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. 3. 340(a). Tim S. McClain  In Colvin, 171 Vet. App. at 174, the CAVC held that, in order for new evidence to be material, there be a reasonable possibility that the new evidence would change the outcome.  Contrary to the Federal Circuits statement in Roberson, 2001 U.S. App. LEXIS at *14, a claim to reopen a previously disallowed claim under 38 U.S.C. 5108 is not a claim based upon error but rather upon material evidence that did not exist when the previous decision was rendered by VA.  In Hayre, the Federal Circuit created another means of reopening a previously denied claim that is not authorized by any provision of law. The Federal Circuit held that the CAVC erred when it concluded that a single request by a VA regional office to the National Personnel Records Center for pertinent service medical records specifically requested by a veteran and not obtained by the regional office fulfills VAs duty to assist. 188 F.3d at1332. The Federal Circuit also held that inherent in the duty to assist is a requirement that VA notify the claimant if the Department is unable to obtain pertinent service medical records specifically requested by the claimant. Id. Finally, the Court held that, where there is a breach of the duty to assist in which VA failed to obtain pertinent service medical records specifically requested by the veteran and failed to provide the veteran with notice explaining the deficiency, the claim does not become final for purposes of appeal. Id. at1334. The Court in Roberson, 2001 U.S. App. LEXIS 11008, at *12, specifically rejected Mr.Robersons contention that remand was required pursuant to Hayre because he did not allege that VA failed to obtain pertinent evidence and thus his claim had been finally decided by the regional office.  PAGE 3. 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