Reitz v. Shinseki , 561 F. App'x 922 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GILBERT E. REITZ,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7135
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3160, Judge William A. Moor-
man.
______________________
Decided: April 9, 2014
______________________
GILBERT E. REITZ, of Somerset, Pennsylvania, pro se.
RYAN MAJERUS, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee. With
him on the brief were STUART F. DELERY, Assistant Attor-
ney General, BRYANT G. SNEE, Acting Director, KENNETH
M. DINTZER, Acting Deputy Director. Of counsel on the
brief was AMANDA BLACKMON, Staff Attorney, United
States Department of Veterans Affairs, of Washington
2 REITZ v. SHINSEKI
DC. Of counsel was MICHAEL J. TIMINSKI, Deputy Assis-
tant General Counsel.
______________________
Before LOURIE, CLEVENGER, and DYK, Circuit Judges.
PER CURIAM.
Gilbert E. Reitz appeals from a 2013 decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”). The Veterans Court affirmed the
Board of Veterans’ Appeals’ (“BVA”) decision denying
retroactive service-connected benefits for Mr. Reitz’s
bronchial asthma. Reitz v. Shinseki, No. 11-3160, 2013
WL2289945 (Vet. App. May 24, 2013) (“Reitz I”). The BVA
concluded that a 1976 Regional Office (“RO”) decision to
deny benefits was not clear and unmistakable error
(“CUE”). The BVA had previously concluded that the RO
did in fact deny Mr. Reitz’s claim in 1976, although the
rejection letter was, and still is, missing from Mr. Reitz’s
claim file. Because we are without jurisdiction, we dis-
miss.
BACKGROUND
Mr. Reitz served in the United States military from
January 1971 until December 1972. This appeal arises
from a claim for service-connected benefits for bronchial
asthma opened by Mr. Reitz on May 17, 1988. In Septem-
ber 1988, the RO informed Mr. Reitz by letter that his
claim would be classified as reopened because he had
previously applied for, and been denied in 1976, service
connection for his asthma. Because the claim was reo-
pened, Mr. Reitz was required to submit new and materi-
al evidence (“NME”) in its support. If the reopened claim
succeeded, he would be entitled to benefits effective the
date of reopening—in this case, May 17, 1988.
The 1988 letter explained that the previous denial of
asthma-related benefits was communicated to Mr. Reitz
REITZ v. SHINSEKI 3
in “our letter of January 28, 1976, inform[ing] you that
service connection could not be allowed for a back condi-
tion, knee condition, bronchial asthma, neuritis of the
right arm or chronic neuritis of the upper right extremi-
ties.” In the Appeal of Gilbert E. Reitz, No. 00-12 163A, 4
(B.V.A. Sept. 26, 2011) (“Reitz II”) (emphasis added). This
reference to a 1976 rejection letter is significant because
sometime between 1990 and 1991, the VA lost Mr. Reitz’s
claim file. Although the VA subsequently reconstructed
Mr. Reitz’s file to the best of its ability, the reconstructed
file does not include a 1976 rejection letter or any other
direct evidence that Mr. Reitz’s asthma claim was rejected
at that time.
In 1998, the BVA determined that Mr. Reitz had
submitted NME in support of his reopened asthma claim
and granted him benefits effective August 1, 1990. In the
Appeal of Gilbert E. Reitz, No. 94-26 288 (B.V.A. Oct. 26,
1998) (“Reitz III”). In its findings of fact, the BVA con-
cluded that Mr. Reitz’s asthma claim was reopened,
rather than original, because an earlier claim for asthma
had been denied in 1976. Id. at 3. Although the BVA
noted that there was no 1976 rejection letter in Mr.
Reitz’s reconstructed file, it relied on the 1988 letter’s
reference to this document and the presumption of regu-
larity—a presumption that “government officials have
properly discharged their official duties.” Id. at 4–5.
Following the BVA’s 1998 decision, Mr. Reitz sought
an earlier effective date of his benefits. The RO denied the
claim, and Mr. Reitz appealed to the BVA, alleging that
the 1976 denial of benefits had been CUE. The BVA
granted Mr. Reitz an effective date of May 17, 1988—the
date that his claim was reopened—but concluded that the
1976 rejection could not be challenged for CUE as a
matter of law because it was impossible to know what
record had been before the RO in 1976. Mr. Reitz ap-
pealed to the Veterans Court.
4 REITZ v. SHINSEKI
In a 2006 order, the Veterans Court vacated the
BVA’s finding that a CUE challenge could not be sus-
tained as a matter of law on a reconstructed record. Reitz
v. Nicholson, 21 Vet. App. 420, at *4–5 (2006) (“Reitz IV”).
It instructed the BVA on remand to conduct a CUE analy-
sis by considering all documents in the reconstructed
record pre-dating the 1976 rejection. Id.The 2006 Veterans Court order did, however, affirm
the BVA’s earlier finding that Mr. Reitz’s asthma claim
was initially rejected in 1976. Id. at *5. In this respect,
the court stated that the BVA “plausibly relied on the
reference to the January 1976 letter in the RO’s Septem-
ber 7, 1988 letter as evidence that the RO issued a deci-
sion on the appellant’s claims in January 1976.” Id. at *3.
The Veterans Court thus rejected Mr. Reitz’s argument
that he was entitled to a 1975 effective date because his
original claim had been pending since that time. It con-
cluded that “the [BVA’s] assignment of an effective date
[of May 17, 1988] was not clearly erroneous.” Id. Mr. Reitz
appealed the court’s decision here, but we dismissed the
appeal for failure to prosecute. Reitz v. Nicholson, 222
Fed. App’x 982 (Fed. Cir. 2007) (“Reitz V”).
After two subsequent BVA decisions and two joint mo-
tions for remand, the BVA determined on September 26,
2011 that the 1976 rejection of Mr. Reitz’s asthma claim
was not CUE. In reaching this decision, the BVA exam-
ined all available evidence pre-dating 1976. The BVA
noted that post-1976 evidence did reveal a service connec-
tion for asthma, but explained that it was limited in its
CUE analysis to the evidence that existed at the time of
rejection in January 1976. Mr. Reitz again appealed to the
Veterans Court.
In 2013, the Veterans Court affirmed the BVA’s 2011
decision finding no CUE in the 1976 rejection. Reitz I, at
*4. The court also addressed Mr. Reitz’s renewed conten-
tion that because the 1976 letter was missing from his
REITZ v. SHINSEKI 5
reconstructed file, it was error for the BVA to conclude
that his earlier asthma claim had actually been rejected
in 1976. Id. at *3. It explained that it had previously
resolved this issue in its 2006 order, that Mr. Reitz had
had the opportunity to appeal the issue to this Court, and
that it was precluded from revisiting the issue under the
“law of the case” doctrine. Id. at *2.
Mr. Reitz now appeals the 2013 decision of the Veter-
ans Court. He seeks a 1975 effective date for his benefits
and makes two arguments on appeal in support of this
claim.
I
A
Mr. Reitz first argues that the BVA erred in conclud-
ing that his 1975 asthma claim had actually been rejected
in 1976. According to Mr. Reitz, the BVA could not have
properly reached this conclusion because there is no direct
evidence of a 1976 rejection in his reconstructed file. If
Mr. Reitz’s 1975 claim was never finally adjudicated, he
would be entitled to benefits effective from 1975 because
the BVA has subsequently found that his bronchial asth-
ma is service connected. If, however, the claim was finally
adjudicated and rejected, Mr. Reitz would only be entitled
to benefits effective from the date he reopened his claim—
May 17, 1988. See 38 U.S.C. § 5110(a).
Mr. Reitz advances evidence that the 1988 letter cited
by the BVA incorrectly lists bronchial asthma among
other conditions for which he received a rejection in
January 1976. The 1988 letter states that “our letter of
January 28, 1976, informed you that service connection
could not be allowed for a back condition, knee condition,
bronchial asthma, neuritis of the right arm or chronic
neuritis of the upper right extremities.” Reitz II, at 4.
According to Mr. Reitz, he received an initial rejection of
service connection for the other conditions listed in the
6 REITZ v. SHINSEKI
1988 letter in late 1974, but did not submit a claim for
asthma until late 1975, one day before he received a final
rejection for the other conditions. Mr. Reitz thus argues
that the missing January 1976 letter could not have
included a rejection for bronchial asthma because insuffi-
cient time had passed from the time he had submitted
this claim. In support of this argument, Mr. Reitz submits
as Exhibit C the 1974 rejection for the other conditions
listed in the 1988 letter. The 1974 rejection does not
include a rejection of asthma-related benefits. He also
submits as Exhibit E a separate claim filed for bronchial
asthma. 1
The 2013 Veterans Court order from which Mr. Reitz
now appeals did not reach the question of whether Mr.
Reitz’s asthma claim had been rejected in 1976, explain-
ing that it had previously resolved this issue in its 2006
order. Reitz I, at *1. The VA similarly argues that when
we dismissed Mr. Reitz’s appeal on this issue for failure to
prosecute, that issue was finally resolved, and its resolu-
tion became the law of the case, binding on future deter-
minations by the Veterans Court and this Court.
B
“Under the law of the case doctrine, both the district
court and the court of appeals generally are bound by
findings of fact and conclusions of law made by the court
of appeals in a prior appeal of the same case.” Intergraph
Corp. v. Intel Corp., 253 F.3d 695, 699 (Fed. Cir. 2001)
(quoting Ellard v. Alabama Bd. of Pardons and Paroles,
928 F.2d 378, 381 (11th Cir. 1991)). The VA correctly
points out that Mr. Reitz previously appealed the Veter-
ans Court’s resolution of the 1976 rejection to this Court.
1 Mr. Reitz alleges that he filed the claim for bron-
chial asthma in December 1975. Unfortunately, no date
information is printed on the claim.
REITZ v. SHINSEKI 7
However, it is not clear that that issue was appealable at
that time. If Mr. Reitz’s appeal from the 2006 order was
not properly before this Court, the issue of whether his
asthma claim was rejected in 1976 has not been finally
resolved and is not governed here by the law of the case.
As explained above, the 2006 Veterans Court order
vacated and remanded the BVA’s CUE determination.
“Remand orders from the Veterans Court ordinarily are
not appealable because they are not final.” Adams v.
Principi, 256 F.3d 1318, 1320–21 (Fed. Cir. 2001). There
are exceptions to this rule, but they usually involve situa-
tions where the appellant’s claim is in danger of not being
fully adjudicated; for example, because the issue might
become moot after remand or otherwise unreviewable on
appeal. Id. There is no recognized exception when, as
here, the order remands-in-part and affirms-in-part, if
there is no danger that the affirmed issue will be made
unreviewable by the remand. Thus, the issue of whether
Mr. Reitz’s asthma claim was rejected in 1976 was never
finally resolved by this Court and we are not bound by the
law of the case here.
That being said, the question that Mr. Reitz asks us
to resolve on appeal is intensely factual. He advances
evidence that his asthma claim could not have been
rejected in 1976 along with his other claims because he
filed the asthma claim at a later date. But the BVA in its
1998 decision found that Mr. Reitz’s asthma claim was
rejected in 1976, and the Veterans Court affirmed this
finding in 2006. Under 38 U.S.C. § 7292(d)(2), which
strictly limits our jurisdiction, we may not review findings
of fact or application of law to the facts, except to the
extent that an appeal presents a constitutional issue. No
constitutional issue is alleged here, and we thus are
without jurisdiction to resolve this question.
8 REITZ v. SHINSEKI
II
Mr. Reitz next argues that, assuming his asthma
claim was in fact rejected in 1976, this rejection was CUE.
He claims that the Veterans Court erred in affirming the
BVA’s determination to the contrary. According to Mr.
Reitz, the BVA was required, as a matter of law, to apply
the “benefit of the doubt” doctrine in its CUE analysis,
and erred when it failed to do so. The benefit of the doubt
rule states that “[w]hen there is an approximate balance
of positive and negative evidence regarding any issue
material to the determination of a matter, the [VA] shall
give the benefit of the doubt to the claimant.” 38 U.S.C.
§ 5107(b).
As we have explained previously, because the benefit
of the doubt rule only applies when there “is an approxi-
mate balance of positive and negative evidence,” we are
without jurisdiction to determine whether the BVA erred
by failing to apply the doctrine in any particular case.
Such a determination would require us “to analyze the
pertinent evidence and make a factual finding that the
evidence was in equipoise . . . [but] our jurisdiction pre-
cludes us from undertaking such an analysis.” Doherty v.
Principi, 99 F. App’x 899, 901 (Fed. Cir. 2004). See also
Stevens v. Shinseki, 428 F. App’x 979, 981 (Fed. Cir. 2011)
(“This court does not have jurisdiction to consider the
proper weight of the evidence, and therefore does not have
jurisdiction to consider the application of § 5107(b) to the
facts of a veteran’s claim.”) (citing Ferguson v. Principi,
273 F.3d 1072, 1076 (Fed.Cir.2001)); Adams v. Principi,
91 F. App’x 135, 136–37 (Fed. Cir. 2004) (holding that this
Court is without jurisdiction to review “the application of
REITZ v. SHINSEKI 9
the ‘benefit of the doubt’ rule to the Appellant's specific
set of facts.”). 2
CONCLUSION
Because each of Mr. Reitz’s grounds for appeal impli-
cates only findings of fact and the application of law to
facts, we are without appellate jurisdiction and we accord-
ingly dismiss.
DISMISSED
COSTS
Each side shall bear its own costs.
2 Even if we did have jurisdiction to consider Mr.
Reitz’s claim in this regard, it is questionable whether the
benefit of the doubt rule applies at all to a claim of CUE.
See Disabled American Veterans v. Gober, 234 F.3d 682,
697 (Fed. Cir. 2000) (holding, in the context of a 38 C.F.R.
§ 20.1403 CUE analysis, that “CUE does not create a
‘balance of the evidence’ situation to which the ‘benefit of
the doubt’ rule could apply.”).