Leroy B. MacKlem v. Eric K. Shinseki , 24 Vet. App. 63 ( 2010 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 08-1409
LEROY B. MACKLEM , APPELLANT ,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided August 10, 2010)
Michael R. Viterna, of Ypsilanti, Michigan, was on the brief for the appellant.
Michael A. Carr, with whom John H. Thompson, Acting General Counsel; R. Randall
Campbell, Assistant General Counsel; and Leslie C. Rogall, Deputy Assistant General Counsel, all
of Washington, D.C., were on the brief for the appellee.
Before HAGEL, LANCE, and SCHOELEN, Judges.
LANCE, Judge, filed the opinion of the Court. SCHOELEN, Judge, filed a concurring
opinion.
LANCE, Judge: The appellant, Leroy B. MacKlem, through counsel, appeals a March 27,
2008, decision of the Board of Veterans' Appeals (Board) that determined that a March 1950 rating
decision, which severed the appellant's service-connected benefits on the basis of clear and
unmistakable error (CUE) in the original March 1944 rating decision awarding service connection
for arthritis of the left hip, did not contain CUE. Record (R.) at 3-27. In a single-judge
memorandum decision issued on November 3, 2009, the Court affirmed the Board decision. On
November 24, 2009, the appellant moved for reconsideration or, in the alternative, consideration by
a panel. On February 4, 2010, the panel ordered the parties to submit supplemental memoranda.
After review of these memoranda, the parties' other briefs, and the record, the Court's November 3,
2009, memorandum decision is withdrawn and this opinion is issued in its place. For the reasons
set forth below, the Court will reverse the Board decision and remand the matter for further
proceedings consistent with this decision.
I. FACTS
The appellant served on active duty for approximately nine months, from February 1943 to
December 1943. R. at 38. He received the European-African-Middle Eastern Campaign Medal and
Bronze Star Attachment. Id. The record reflects that he arrived in the European Theater in June
1943 and returned home in November 1943, having participated in the "Occupation of Sicily." Id.
The appellant's induction examination report indicates that he had dislocated his hip in 1941,
that there was "no recurrence," and that the condition was "nonsymptomatic." R. at 396-99. An
October 1943 x-ray report of the appellant's pelvis notes an impression of "aseptic necrosis."1 R. at
389. An October 1943 Medical Board report diagnosed the appellant's symptoms as "[n]ecrosis,
aseptic, severe, head of left femur, caused by previous dislocation in December 1941." R. at 384.
The report concluded that the disability was not incurred in the line of duty and had existed prior to
the appellant's induction. Id. A November 1943 Brief Clinical Record noted a final diagnosis of
"[n]ecrosis, aseptic, severe, head of left femur, caused by previous dislocation in December 1941."
R. at 372. The report reiterated that the disability existed prior to service and was not incurred in the
line of duty. Id. A December 1943 "Final Summary" detailing medical examinations at the Billings
General Hospital, Fort Harrison, Indiana, indicates that, prior to enlistment, the appellant "was
involved in an automobile accident . . . [and] suffered a dislocation of the left hip." R. at 353.
Noting that the results revealed in prior x-rays were "characteristic of aseptic necrosis," the physician
stated that, "[i]n the opinion of the Chief of the Orthopedic Section, the aseptic necrosis . . . is
secondary to a dislocated hip in civilian life, 1941." Id.
The appellant's Certificate of Disability for Discharge reveals that he was recommended for
discharge due to "[n]ecrosis, aseptic, severe, head of left femur, secondary to dislocation, left hip,
accidentally incurred while a civilian, when he was involved in an automobile accident, 24 Dec.
1
"Aseptic necrosis" is defined as "increasing sclerosis and cystic changes in the head of the femur which
sometimes follows traumatic dislocation of the hip." D O R LAN D 'S I LLU STRATED M ED ICAL D ICTIO N ARY 1254 (31st ed.
2007) [hereinafter D O RLAN D 'S ].
2
1941," indicating that, "[s]ince the injury on 24 Dec. 1941, [the appellant] has had intermittent pain
in [the] left hip." R. at 419-420, 419.
A March 1944 rating decision awarded service connection for arthritis, secondary to the
appellant's left hip condition, and assigned a 20% disability rating, effective December 1943. R. at
331.
In October 1944, the appellant underwent hip surgery at the Marine Hospital in Detroit,
Michigan, and remained hospitalized until January 1946. R. at 182-86, 188. A "special orthopedic
examination" report reveals a diagnosis of osteochondritis,2 or Perthe's disease, of the left hip, with
severe limitation of motion. R. at 188; see R. at 182-96, 193-94.
A February 1945 physical examination report indicates a diagnosis of "[o]steochondritis, left
femur (Perthe[']s hip)." R. at 316; see R. at 310-316. A March 1945 rating sheet stated that the
appellant's disability was osteochondritis (Perthe's disease) of the left hip, noting that it had been
formerly diagnosed as arthritis of the left hip. R. at 306-07.
A July 1946 physical examination indicates that the appellant had dislocated his hip prior to
service but that he "[w]as all right until he went into the Army in February 1943," where he
experienced "[s]ome pain in [his] hip during basic training." R. at 262; see R. at 262-70. The report
notes that the appellant reported having pain in his hip while he served in North Africa and Sicily
and that the Army called it "necrosis," but that the "Veteran's Bureau diagnosed it as arthritis." R.
at 262. A February 1946 decision increased the appellant's disability rating to 70%, effective
February 1946. R. at 413.
A 1949 report of physical examination noted that "[i]n March 1943, [the appellant] went on
sick call for pain in [the] left hip and reported off and on . . . finally it became so bad [that] he
reported to the hospital in Sicily and was sent to the States, arriving [at] Billings General Hospital
[on] November 28, 1943." R. at 186; see R. at182-96.
In January 1950, VA proposed severance of the appellant's service connection award on the
basis of CUE "as shown by the evidence of record at the time of the prior decisions." R. at 180-81.
VA notified the appellant of the proposal. R. at 171-73. A March 1950 rating decision severed
2
"Osteochondritis" is defined as "inflammation of both bone and cartilage." D O RLAN D 'S at 1366.
3
service connection for the appellant's osteochondritis of the left femur on the basis of CUE. R. at
162-65, 63. The decision indicates that the appellant's induction examination reported that he had
a hip dislocation as a civilian in 1941 and that the condition was nonsymptomatic. R. at 163.
Noting that the appellant's hip condition existed prior to service, the decision states that,
"[a]pproximately one month after reporting to active duty the veteran went on sick call, complaining
of hip pain," and that, in October 1943, he was admitted to the 33rd General Hospital with a
"diagnosis of necrosis, aseptic, severe, head of left femur, caused by dislocation, December 1941."
Id. After reviewing the medical evidence from 1944 to 1949, the rating board concluded that there
was "no evidence during service of any abrupt or sudden patholo[gic] developments or trauma which
could be considered a positive factor [of] aggravation of the condition which was incurred prior to
service." R. at 164. The rating board concluded that "the increase in the level of disability during
service was due solely to [the] natural progress to be expected in the condition which was incurred
[in] civilian life, and which was noted on induction." Id.
In September 2006, 56 years after severance, the appellant submitted a letter arguing that the
March 1950 rating decision severing his benefits contained CUE, asserting that the decision was
based only on a "difference of opinion, which in itself does not meet the criteria for severance." R.
at 97. In January 2007, the Detroit, Michigan, regional office (RO) issued a rating decision finding
that the March 1950 decision did not contain CUE. R. at 94-96. The appellant submitted a Notice
of Disagreement (NOD). R. at 88.
The appellant thereafter received an undated letter from the Detroit RO indicating that it had
"made a decision on your appeal received on January 20, 2007." R. at 60. The letter included a
schedule detailing the past-due payments to which the appellant would be entitled. R. at 60-66. This
undated letter apparently referred to a decision review officer (DRO) decision, dated June 1, 2007,
indicating that the appellant's "[b]enefits sought on appeal are granted . . . [and] reinstated April 1,
1950." R. at 71; see R. at 71-78. That decision states that "the severance of service [connection] is
held to be a clear and unmistakable error." R. at 75.
A July 2007 letter to the director of the Detroit RO from the director of VA's Compensation
and Pension Service (C&P) indicates that the aforementioned June 2007 DRO decision was merely
a proposal. R. at 58-59. The letter, entitled "Administrative Review—Retroactive Award Over
4
Eight Years," notes that the June 1, 2007, decision, "if promulgated, [would] reinstate entitlement
to compensation payments that were severed by a rating decision dated March 29, 1950." R. at 58.
The letter explains that the March 1944 rating decision "was in error for granting service[]connection
for arthritis, secondary to dislocation of the left hip, . . . [because t]he evidence of record did not
show aggravation." Id. Noting that the proposed rating decision "should not be promulgated," the
letter states that "available evidence clearly indicated that this condition existed prior to service," and
that the severance "decision was correct." R. at 58-59.
In August 2007, VA issued the appellant a Statement of the Case (SOC) continuing its
finding that the severance decision did not contain CUE. R. at 44-57. The appellant perfected an
appeal of the decision. R. at 41-42.
In the decision on appeal, the Board determined that there was no CUE in the March 1950
decision because there was a plausible basis in the record for the March 1950 decision finding CUE
in the March 1944 decision. R. at 1-25.
II. ARGUMENTS
In his initial brief, the appellant argues that the Board erred in finding "that the March 1950
rating decision was not the product of CUE." Appellant's Brief (Br.) at 7. In his motion for
reconsideration or a panel decision, however, the appellant does not argue that the 1950 RO decision
contained CUE. Instead, he contends that the August 2007 SOC was void, asserting that, "but for
the extraordinary review process undertaken in this case, even if the June 2007 DRO decision was
a mere proposal, it was on the path to promulgation." Appellant's Motion for Reconsideration (Mot.)
at 4-5. The appellant further explains his position in his supplemental brief in response to the Court's
February 4, 2010, order, stating that
the extraordinary award process has been found by the [U.S. Court of Appeals for the
Federal Circuit (Federal Circuit)] to be invalid[,] and that finding, by necessity,
affords the August 2007 SOC no force or legal effect . . . [; b]ut for the extraordinary
review process implemented improperly by VA, this appeal would not have occurred
as the benefit sought had been granted in the June 2007 DRO decision and there was
no legal basis to further pursue a full grant of benefits.
Appellant's Supplemental (Supp.) Br. at 5-6.
5
In his supplemental brief, the Secretary argues that the August 2007 SOC is not void.
Secretary's Supp. Br. at 2. He contends that the appellant suffered no violation of his due process
rights because, "[e]ven though he could not submit argument to the C&P Service, he reviewed the
DRO's draft, non-promulgated decision and submitted argument [and] was later afforded the
opportunity for a hearing at the RO and . . . the Board." Id. In essence, the Secretary argues that,
although VA erred in providing the appellant with a draft decision, any such error was harmless
because the appellant enjoyed de novo review by the Board, "without any deference accorded to any
prior legal or factual analysis" undertaken by VA. Id. at 7-8.
III. ANALYSIS
A. Appellant's Arguments Regarding the Board Decision
1. Clear and Unmistakable Error
a. Legal Framework
At the time of the March 1950 decision, the regulation governing severance, Veterans
Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulation 1009; effective
January 25, 1936, to December 31, 1957, which was the precursor of 38 C.F.R. § 3.105 (2010),
provided that VA could not reverse or amend a rating decision in the absence of new and material
evidence but that a decision could be reversed or amended where such reversal or amendment was
obviously warranted by CUE shown by the evidence in the file at the time that the prior decision was
rendered. See VA Regulation 1009(A), (D), as in effect in 1950.
A VA decision that has become final generally may not be reversed or amended in the
absence of CUE. See 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. § 3.105(a); see also 38 U.S.C. §§ 5108,
7105(c). A claim of CUE is a collateral attack on a final decision by an RO or the Board. See
Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000). CUE claims as to RO
decisions are permitted by 38 U.S.C. § 5109A; 38 U.S.C. § 7111 authorizes such claims as to Board
decisions. Both statutes contain identical language: "If evidence establishes the error, the prior
decision shall be reversed or revised." 38 U.S.C. §§ 5109A(a), 7111(a); see also 38 C.F.R.
§§ 3.105(a), 20.1403(a).
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"'In order for there to be a valid claim of [CUE], . . . [t]he claimant, in short, must assert more
than a disagreement as to how the facts were weighed or evaluated.'" Crippen v. Brown, 9 Vet.App.
412, 418 (1996) (quoting Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc)). Moreover, a
CUE claim must identify the alleged error(s) with "'some degree of specificity.'" Id. at 420 (quoting
Fugo v. Brown, 6 Vet.App. 40, 44 (1993) ("to reasonably raise CUE there must be some degree of
specificity as to what the alleged error is and . . . persuasive reasons must be given as to why the
result would have been manifestly different") (emphasis in original)); Bustos v. West, 179 F.3d 1378,
1380-81 (Fed. Cir. 1999) (adopting this Court's interpretation of 38 C.F.R. § 3.105). To establish
CUE in a final decision of an RO or the Board, a claimant must prove
(1) that either the facts known at the time were not before the adjudicator or the law
then in effect was incorrectly applied, (2) that an error occurred based on the record
and the law that existed at the time the decision was made, and (3) that, had the error
not been made, the outcome would have been manifestly different.
Grover v. West, 12 Vet.App. 109, 112 (1999); see also Damrel v. Brown, 6 Vet.App. 242, 245
(1994); Russell, 3 Vet.App. at 313. CUE is the sort of error that is "undebatable, so that it can be
said that reasonable minds could only conclude that the original decision was fatally flawed at the
time it was made." Russell, 3 Vet.App. at 313-14. To establish CUE it must be clear from the face
of the RO decision that a particular fact or law had not been considered in the RO's adjudication of
the case. See Crippen, 9 Vet.App. at 421 (citing Eddy v. Brown, 9 Vet.App. 52, 58 (1996)).
This Court reviews CUE claims only when they have been previously adjudicated by the
Board. See Sondel v. Brown, 6 Vet.App. 218, 220 (1994); Russell, 3 Vet.App. at 314-15; see also
Bradley v. Principi, 14 Vet.App. 255, 257 (2001) (Court lacked jurisdiction over appellant's CUE
claim improperly and improvidently raised for the first time on appeal to the Court). In reviewing
Board decisions evaluating allegations of CUE in prior final decisions, the Court "cannot conduct
a plenary review of the merits of the original decision." Archer v. Principi, 3 Vet.App. 433, 437
(1992). On appeal of a Board determination that there was no CUE in a prior final RO decision, this
Court's review is limited to determining whether the Board decision was "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law," including whether the decision is
supported by an adequate statement of reasons or bases. 38 U.S.C. §§ 7261(a)(3)(A), 7104(d)(1);
see Lane v. Principi, 16 Vet.App. 78, 83-84 (2002) (affirming this Court's longstanding precedents
7
regarding standard of review in CUE determinations), aff'd, 339 F.3d 1331 (Fed. Cir. 2003); Beyrle
v. Brown, 9 Vet.App. 377, 382 (1996); Eddy, 9 Vet.App. at 57; Russell, 3 Vet.App. at 315. That
standard of review, however, "'contemplates de novo review of questions of law.'" Joyce v.
Nicholson, 19 Vet.App. 36, 43 (2005) (quoting Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir.
2004)).
b. Application to the Appellant's Case
The issue before the Court is whether the Board erred in determining that the March 1950
rating decision severing service connection did not contain CUE. The appellant argues that the
Board decision should be reversed because it "fails to establish that the RO met its burden to show
[CUE] in the grant of service connection for the [appellant's] hip condition." Appellant's Br. at 7.
The appellant asserts that the March 1950 decision contained CUE because "the RO imposed a test
requiring to show 'abrupt or sudden pathological developments or trauma' to prove aggravation" of
the appellant's hip injury. Id. at 9 (citing R. at 164). The appellant contends, therefore, that "the law
then in effect was incorrectly applied." Grover, 12 Vet.App. at 112.
Here, it is not disputed that the appellant's hip condition preexisted service. Any worsening
of the appellant's hip during service would be subject to the presumption of aggravation, which
mandates that a "preexisting injury or disease will be considered to have been aggravated by active
military . . . service, where there is an increase in disability during such service, unless there is a
specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.
§ 1153; see Veterans Regulation No. 1(a), part I, para. 1(d) (1943); Joyce, 19 Vet.App. at 44. As the
Board correctly found, the March 1950 decision to sever was predicated on just such a finding. R.
at 24; see R. at 162-65. Although the appellant argues that the March 1950 RO decision
mischaracterized the evidence then of record by stating that there was no "abrupt or sudden
pathological developments or trauma" demonstrating aggravation, as the Board explained, the 1950
decision nevertheless explicitly determined that the appellant's hip worsened based solely on the
natural progress of his condition. Appellant's Br. at 7-11; R. at 24, 164. Moreover, as correctly
pointed out by the Secretary, this Court has held that it is not arbitrary or capricious "for the Board
to have found no CUE insofar as the . . . RO may have based its determination of nonaggravation
8
on an implicit finding, by clear and unmistakable evidence, of natural progression by the Medical
Board." Secretary's Br. at 15 (citing Joyce, 19 Vet.App. at 49-50).
Although the appellant could have challenged the March 1950 decision via a direct appeal,
thereby enjoying the benefit of the lower threshold of demonstrating clear error, he did not choose
such an avenue. Under the much more burdensome CUE standard, however, the Court simply
cannot conclude that the Board's determination is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law. 38 U.S.C. § 7261(a)(3)(A).
2. Board's Characterization of the Evidence
The appellant contends that the Board erred in characterizing his hip condition as a fracture.
Appellant's Br. at 14. The appellant is correct insofar as the Board, in referring to the appellant's
preexisting hip condition, stated that "it has been undisputed that the veteran fractured his left hip
prior to service." R. at 10. The appellant's argument, however, fails in two respects. First, although
it is obvious that the Board incorrectly characterized the appellant's hip condition as a fracture, it is
not clear how this isolated misstatement prejudiced the appellant, nor does the appellant aid the
Court by explaining any potentially prejudicial effect. See Shinseki v. Sanders, 129 S.Ct. 1696, 1706
(2009) (noting that the appellant bears the burden of showing that any alleged notice error resulted
in prejudice); Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (the Court must take due
account of the rule of prejudicial error).
Second, as noted by the Secretary, the case on which the appellant chiefly relies in asserting
error is a nonprecedential, single judge memorandum decision. Secretary's Br. at 18. The Court
reminds counsel for the appellant that citation to nonprecedential opinions is not permitted by the
Court's Rules of Practice and Procedure. U.S. VET . APP . R. 30(a) ("A party . . . may not cite as
precedent any action designated as nonprecedential by the Court.").
3. Medical Determinations
The appellant argues that the March 1950 severance decision was erroneous inasmuch as the
rating board made a medical determination regarding the natural progress of his hip condition. See
Appellant's Br. at 14-15. This argument is without merit. Again, as pointed out by the Secretary,
the case on which the appellant relies, Colvin v. Derwinski, 1 Vet.App. 171 (1991), is inapplicable
to a CUE analysis of a prior, final decision from 1950, as it was not then in effect. See Grover,
9
supra. Moreover, at the time of the severance of the appellant's service connection grant, the VA
rating boards included physicians and, as noted by the Secretary, the chairman of the rating board
that determined to sever the appellant's grant was indeed a medical doctor. Appellant's Br. at 18.
B. Appellant's Purple Heart Argument
The gravamen of the appellant's alternative argument—and the sole issue necessitating panel
review by this Court—is that, regardless of the merits of his CUE assertions, he is entitled to the
benefits outlined in the June 2007 decision because VA's subsequent review and denial were based
on an invalid procedure. Appellant's Supp. Br. at 5-6. The Secretary concedes that the procedure
used was invalid, but argues that, because the appellant had ample opportunity to submit argument
and because he received de novo review by the Board, VA's reliance on the invalid procedure did
not prejudice the appellant.
The operative issue in this appeal is whether VA's reliance on the extraordinary award
procedure (EAP), which has now been invalidated by the Federal Circuit, renders the August 2007
SOC void and, if so, how that affects the status of the appellant's claim. To be clear, VA committed
two errors during its processing of the appellant's claim. First, it mistakenly sent him a proposed
decision. Second, in attempting to correct the first error, VA used the EAP, which has now been
declared invalid. Although the first error did not prejudice the appellant, the Court concludes that
the second error is dispositive in that VA's use of the now-invalid EAP renders all VA action taken
thereafter void.
There can be no question that the EAP, set forth in Fast Letter 07-19 and continued in Fast
Letter 08-24, is no longer valid. In Military Order of the Purple Heart v. Sec'y of Veterans Affairs,
the Federal Circuit made clear that the EAP, as "set forth in the Fast Letters[,] does not comport with
the governing Regulations, . . . was not implemented in compliance with the requirements of the
Administrative Procedure Act[,] . . . is not in accordance with 'law, rule, or regulation,' and is
invalid." 580 F.3d 1293, 1297-98 (Fed. Cir. 2009) (citing 5 U.S.C. § 706(2)(A)). The issue
presented is what effect the use of this invalid procedure has on this case.
Although the Secretary argues that, at worst, the Court should remand this matter to the
Board so that the Board can remand the appeal to the RO with instructions to issue a new SOC, his
argument is flawed. See Secretary's Supp. Br. at 4-5. Issuance of a new SOC would not cure the
10
error in this case. The fundamental problem is not that the appellant was denied an opportunity to
submit evidence and argument. Indeed, as this is a CUE motion, the inquiry is limited to (1) whether
the correct facts were not before the adjudicator; or (2) whether VA incorrectly applied the statutory
or regulatory provisions extant at the time. Damrel, 6 Vet.App. at 245. As the Federal Circuit
emphasized, the problem is that VA revised a favorable decision "without the knowledge and
participation of the claimant." Purple Heart, 580 F.3d at 1294. As the C&P review of the June 2007
proposed decision and the August 2007 SOC were both predicated entirely on the EAP, and because
the Federal Circuit has determined that the EAP is invalid, it follows that the August 2007 SOC is
void ab initio. Moreover, as pointed out by the appellant, "[b]ut for the [EAP,] . . . this appeal would
not have occurred as the benefit sought had been granted in the June 2007 DRO decision."
Appellant's Supp. Br. at 6. The Court concludes that, based on the Federal Circuit's determination
in Purple Heart, the August 2007 SOC was void ab initio and the resulting Board decision is
likewise a legal nullity.
Because the subsequent actions were unlawful, the appellant was prejudiced by the EAP in
this case regardless of the fact that it is clear that his assertion of CUE is without merit.3 Here,
because VA's reliance on the EAP renders the August 2007 SOC void ab initio, the Court must set
aside the resulting Board decision "as 'not in accordance with law.'" Brown v. Brown, 5 Vet.App.
413, 422 (1993) (reversing Board's reduction of disability rating and remanding for Board to reinstate
prior rating) (quoting 38 U.S.C. § 7261(a)(3)(A)); see Wilson v. West, 11 Vet.App. 383, 386-87
(1998) (applying same principle to case involving severance of service connection); see also
Schafrath v. Derwinski, 1 Vet.App. 589, 596 (1991) (reversing Board's decision that rating should
be reduced because the Board had failed to provide adequate statement of reasons or bases).
Applying Purple Heart, it is clear that the only proper remedy is to place the appellant in the position
he was in before the EAP, in receipt of a favorable decision, even if that position is erroneous.
3
Although our concurring colleague would not address the merits of the appellant's claim, we find it necessary
to do so to fully address the Secretary's contention that the appellant was not prejudiced by the use of the EAP in this
case. See Shinseki v. Sanders, 129 S.Ct. 1696, 1704-08 (2009) (requiring this Court to consider whether an error was
prejudicial). Although the Supreme Court in Sanders warned against this Court becoming a "citadel[] of technicality,"
Id. at 1705 (internal quotation omitted), this is an exceptional case in which the technicality trumps the merits of the case.
11
The Court is aware that the Secretary has a serious interest in reviewing major decisions by
front-line RO adjudicators. In an effort to reduce delays, VA has added thousands of new claims
processors. FY 2010 Budget for Veterans’ Programs: Hearing Before the S. Comm. on Veterans’
Affairs, 111th Cong. (Mar. 10, 2009) http://www.senate.gov/fplayers/ CommPlayer
/commFlashPlayer.cfm?fn=vetaff031009&st=060 (video of Sec'y Shinseki’s testimony at 82:00
(response to question from Senator Murray)). The adjudicators are generally not attorneys. See
DANIEL HARRIS, FINDINGS FROM RATERS AND VSOS SURVEYS 14 (The CNA Corporation, May
2007) (published as part of the Veterans' Disability Benefits Commission), available at
http://www.vetscommission.org/displayContents.asp?id=4 (last checked June 22, 2010) (26% of
adjudicators do not have college degrees, 40% have college degrees, and 34% have "[m]ore [t]han
[c]ollege"). Furthermore, "it takes about 3 to 5 years for newly hired rating specialists to become
proficient given the complexity of the job." U.S. GOV 'T ACCOUNTABILITY OFFICE , PUBL'N NO .
GAO-090910T, PRELIMINARY FINDINGS ON CLAIMS PROCESSING TRENDS AND IMPROVEMENT
EFFORTS 12 (2009); see also Hearing on Review of Veterans’ Disability Compensation: Undue
Delay in Claims Processing: Hearing Before the S. Comm. on Veterans’ Affairs, 110th Cong. 7 (Jul.
9, 2008) (statement of Rear Adm. Patrick W. Dunne, USN (Ret.), Acting Under Secretary for
Benefits),http://frwebgate.access.gpo.gov/ cgi-bin/ getdoc.cgi? dbname=110_senate_hearings&
docid=f:43860.pdf. It is reasonable, therefore, to have major awards subject to experienced
supervision to avoid incorrect and inconsistent decisions that would confuse veterans and sap public
confidence in the system. The Federal Circuit, however, considered these arguments and concluded
that such procedures could only be instituted "with appropriate statutory and regulatory
authorization." Purple Heart, 580 F.3d at 1297. In the meantime, an unfortunate side effect of the
rush to reduce VA's backlog is that some veterans will receive incorrect decisions from
inexperienced adjudicators.
We also agree with our concurring colleague that VA should have a means to protect itself
from fraud and thus protect the public fisc. As we have been told by the Federal Circuit, however,
introducing what is, in effect, a secret adjudication to a non-adversarial system whose procedures
are set out by Congress in great detail is not a means available to accomplish this end, no matter how
worthy.
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In the absence of any lawful action by VA to internally review the June 2007 decision of the
RO adjudicator that was favorable to the appellant, that decision must stand. On remand, the Board
shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to
provide for "expeditious treatment" of claims remanded by Board or Court).
IV. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings,
the Court's November 3, 2009, single-judge memorandum decision is withdrawn. The March 27,
2008, Board decision is REVERSED and the matter is REMANDED to the Board for action
consistent with this opinion.
SCHOELEN, Judge, concurring in the result: Although I agree with the majority to the extent
that it holds that the Board's decision must be reversed and the June 2007 decision of the Decision
Review Officer (DRO) reinstated, I write separately to address several concerns.
First, I want to stress the importance of a veteran's participation in proceedings before VA,
as recognized by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Military
Order of the Purple Heart of the USA v. Sec'y of Veterans Affairs, 580 F.3d 1293, 1297 (Fed. Cir.
2009) (Purple Heart). In the veterans benefits system, where veteran claimants often tread without
the benefit of counsel or a shred of familiarity with the system's complex rules and regulations, it is
essential that proceedings are not only fair in actuality but also in appearance. Our caselaw embraces
this principle. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (observing that "systemic
fairness and the appearance of fairness carries great weight" within the veterans benefits system);
see also Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006) (describing the unique nature
of the veterans benefits system and recognizing the importance of the appearance of fairness in the
adjudication of claims). Although the veterans benefits system "is not meant to be a trap for the
unwary," Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009), it can be confusing to an
inexperienced claimant. See Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d
1339, 1342 (Fed. Cir. 2003) (describing the process by which a veteran's claim works through the
administrative procedure). Therefore, any procedure that essentially allows VA to go "behind the
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back" of a veteran claimant—even one in the honorable pursuit of preventing fraud or error—must
be carefully scrutinized.
The Federal Circuit discussed VA's extraordinary award procedure (EAP) in its Purple Heart
decision and properly declared it invalid. As the Federal Circuit noted, this procedure was
promulgated through a VA Fast Letter requiring that certain awards be referred from the regional
office (RO) to the compensation and pension director "for 'final determination.'" Purple Heart,
580 F.3d at 1294. The Fast Letter directed that RO "decisions granting Extraordinary Awards shall
not be disclosed to the veteran or his representative, that the claimant is not to be informed that the
[(Compensation and Pension)] C & P review occurred, and that the claimant is not to be informed
if the C & P Service reduced the original award." Id. at 1294-95. This procedure prevented a
veteran claimant from "knowing what persuaded an unidentified decision-maker to reduce the award
that was made by the persons before whom the hearing was held." Id. at 1297. The EAP flew in the
face of the fairness principles discussed above and, as the Federal Circuit recognized, affected
substantive rights set forth in the Secretary's own regulations. Id.VA should, and must, have a system to monitor quality control and to deter employee fraud,
but such a system cannot come at the expense of the claimant veteran. The system set forth in the
VA Fast Letter is not in place to protect veterans from erroneous decisions made by inexperienced
adjudicators, and VA is simply not permitted to infringe upon the rights of the veteran, even if
protecting those rights comes at a cost to the Agency. I note that, until VA properly undertakes to
provide a system to review large awards, it is possible for the Agency to mitigate the cost of an
erroneous decision in a manner that does not infringe on the rights of veterans, such as by the use
of 38 C.F.R. § 3.105(a), which permits prior decisions to be reversed or amended on the basis of
clear and unmistakable error. See 38 C.F.R. § 3.105(a) (2010) ("Previous determinations which are
final and binding . . . will be accepted as correct in the absence of clear and unmistakable error.
Where evidence establishes such error, the prior decision will be reversed or amended.").
Finally, I am disturbed by the majority's dedication of a significant portion of this opinion
to what amounts to nothing more than dicta. The ultimate holding of this opinion is that the Board's
decision is the product of a defective procedure and, therefore, void ab initio. Why expend so much
judicial ink on the merits of a Board decision that is a legal nullity? There is simply no Board
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decision for this Court to affirm, modify, or reverse here. See 38 U.S.C. § 7252(a) (setting forth this
Court's jurisdiction to review Board decisions). What effect will these dicta have on future
proceedings? The decision, as written, appears to provide VA a template to sever the appellant's
benefits in the future, if it chooses to do so. And, although the majority states that reaching the
merits of the appellant's claim is necessary "so to fully address the Secretary's contention that the
appellant was not prejudiced by the use of the EAP," Majority Decision at n. 3, I do not see how the
Court can perform a harmless error analysis of a Board decision that does not exist. Thus, I
respectfully maintain that the majority should have limited its decision to a finding that the Board
decision was void ab initio and that the June 2007 DRO decision should be reinstated.
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