Larry G. Tyrues v. Eric K. Shinseki , 23 Vet. App. 166 ( 2009 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 04-0584
LARRY G. TYRUES, APPELLANT ,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Remand from the U.S. Court of Appeals for the Federal Circuit
(Argued September 9, 2008 Decided October 2, 2009)
Kenneth M. Carpenter of Lawrence, Kansas, with whom Mark R. Lippman of La Jolla,
California, was on the brief for the appellant.
Nisha C. Wagle, with whom Paul J. Hutter, Acting General Counsel; R. Randall Campbell,
Assistant General Counsel; and Joan E. Moriarty, Deputy Assistant General Counsel, all of
Washington, D.C., were on the brief for the appellee.
Before GREENE, Chief Judge, and KASOLD, HAGEL, MOORMAN, LANCE, DAVIS,
and SCHOELEN, Judges.
MOORMAN, Judge, filed the opinion of the Court. KASOLD, Judge, filed a separate
concurring opinion. HAGEL, Judge, filed a separate opinion concurring in the result and dissenting
in part. LANCE, Judge, filed a separate opinion concurring in part and dissenting in part, in which
SCHOELEN, Judge, joined.
MOORMAN, Judge: The appellant, Larry G. Tyrues, through counsel, seeks review of an
April 7, 2004, Board of Veterans' Appeals (Board) decision that denied disability compensation for
a lung disorder as a chronic disability because the evidence did not support a finding that it resulted
from an undiagnosed illness and therefore did not warrant service connection on a presumptive basis
under 38 U.S.C. § 1117. Both parties filed briefs, and the appellant filed a reply brief. On
November 15, 2005, the Court affirmed the Board's decision and held that it did not have jurisdiction
to review a September 1998 Board decision that denied the appellant disability compensation on a
direct basis. Tyrues v. Nicholson, 20 Vet.App. 231 (table), 2005 WL 3157695 (2005). On
March 11, 2008, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) vacated this
Court's decision and remanded the matter for the Court to reconsider its decision in light of two
decisions reached after the Court issued its November 2005 decision in this case: Joyce v.
Nicholson, 443 F.3d 845 (Fed. Cir. 2006), and Roebuck v. Nicholson, 20 Vet.App. 307 (2006).
Tyrues v. Peake, 273 F. App'x 921, No. 2006-7040, 2008 WL 907458 (Fed. Cir. Mar. 11, 2008).
A panel of the Court heard oral argument on September 9, 2008. Thereafter, this case was called
before the full Court. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a).
For the reasons set forth below, the Court holds that the Secretary permissibly processed and
issued a final decision denying benefits based on direct service connection, and remanded for the
consideration of benefits based upon presumptive service connection, in separate decisions, in 1998
and 2004. We further hold that because benefits based on direct service connection were finally
decided in a 1998 Board decision that was not timely appealed, nor reopened and considered in the
2004 Board decision, we lack jurisdiction to now review the denial of benefits for service connection
on a direct basis. As discussed more fully below, the Court will dismiss, for lack of jurisdiction, that
part of the appeal finally decided in the September 1998 Board decision, and we will vacate the 2004
decision of the Board now on appeal and remand the matters addressed therein for further
adjudication consistent with this opinion.
I. FACTS
Mr. Tyrues served on active duty in the U.S. Army from September 1969 to April 1971, and
from September 1990 to May 1991. Record (R.) at 16-17. He served in the Persian Gulf from
November 1990 to April 1991. R. at 17. In March 1994, Mr. Tyrues was hospitalized for treatment
of refractory pneumonia and tonsilitis. R. at 227. In March 1995, he sought VA benefits for a lung
disability on the basis of direct service connection. R. at 112. In December 1996, following a VA
hearing officer's suggestion that his lung symptoms and various other complaints, including sore and
aching joints, may warrant a claim for "Persian Gulf Syndrome," Mr. Tyrues sought service
connection on that basis as well. R. at 146-47, 150.
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In a March 1997 decision, the Board remanded the matter of Mr. Tyrues's entitlement to
service connection for a lung disorder for further development, including the procurement of
medical records and a VA medical examination to obtain a current diagnosis of his claimed
respiratory disability and to assist in a determination as to whether any current lung disorder was
related to his periods of active service. R. at 155. The Board directed that following development,
the VA regional office (RO), if it issued an adverse decision, should provide Mr. Tyrues with a
Supplemental Statement of the Case (SSOC) and return the case to the Board. R. at 156. The
following month, the RO notified Mr. Tyrues that it had received his claim for benefits based on his
Persian Gulf War service and requested further evidence. R. at 163-65. An April 1997 RO
Compensation and Pension Examination Worksheet noted that the Board had remanded an appeal
from Mr. Tyrues and directed compliance with the Board remand as to Mr. Tyrues's claim for
service connection "for a lung disorder due to Persian Gulf War service." R. at 168. The RO also
noted that Mr. Tyrues "has amended his claim to include s/c [(service connection)] for aching joint,
memory loss, [and] a stomach condition." R. at 168.
A May 1997 VA medical examination report identified the then-present complaints of
Mr. Tyrues to be lung disorder, joint pain, and memory loss. R. at 190. The VA examiner
diagnosed Mr. Tyrues as having "1. Possible Persian Gulf Syndrome with shortness of breath, joint
pain, and memory loss. 2. Degenerative arthritis feet with bilateral Hallux valgus deformity." R. at
191. The examiner opined that "[i]t is only speculation on my part, but, he did not have a lung
disorder prior to his service in the Persian Gulf as he does now." Id.On April 20, 1998, the RO issued a decision denying service connection for a lung disorder,
which the RO noted was a "remanded issue." R. at 242. In its discussion of the lung disorder, the
RO specifically stated that "service connection for a lung disorder on a direct basis remains denied"
and that, in addition, "service connection for lung problems, diagnosed on VA examination as
shortness of breath, as due to an undiagnosed illness is denied." R. at 243. The RO also denied
service connection for three other separately identified conditions – joint pain as due to an
undiagnosed illness, memory loss as due to an undiagnosed illness, and a stomach condition as due
to an undiagnosed condition. The RO concluded that (1) the joint pain was determined to result
from known clinical diagnoses of degenerative arthritis of the feet, tendonitis of the right shoulder,
and lumbar strain; (2) the memory loss was not shown with chronic symptoms of a certain duration
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within the requisite period; and (3) the stomach condition was determined to result from a known
clinical diagnosis of irritable bowel syndrome. R. at 243-45. The record on appeal does not contain
any subsequent document from Mr. Tyrues to the RO, or from the RO to Mr. Tyrues, as to these
three conditions. See R. at 1-402.
On April 20, 1998, the RO notified Mr. Tyrues that it was returning to the Board the matter
of service connection for a lung disorder and enclosed an SSOC that discussed "service connection
for a lung disorder." R. at 248-54. The SSOC reiterated the findings contained in the rating decision
of the same date – denying benefits for a lung disorder on a direct basis and for lung problems,
diagnosed as shortness of breath, as due to an undiagnosed illness. R. at 254. Mr. Tyrues responded
to the SSOC stating that the issue in this case is entitlement to service connection for a lung disorder.
R. at 256.
In September 1998, the Board (1) denied disability compensation based on direct service
connection for a lung disorder because it found that the matter was not well grounded, and
(2) remanded to the RO the issue of disability compensation based on presumptive service
connection for an undiagnosed illness manifested by shortness of breath for further development to
include an additional VA medical examination. R. at 265-76. The Board discussed the evidence
of record as it pertained to symptoms of the lung and chest, including congestion, colds, and flu-like
symptoms, and discussed evidence regarding pulmonary function tests, breath sounds, any
pulmonary or pleural abnormalities, as well as diagnoses of pneumonia. R. at 269-70. The Board
did not refer to any symptoms other than those involving the chest and lungs. The Board did not
make any reference to the joint pain, stomach condition, and memory loss. See R. at 265-75. The
Board instructed that, in regard to the remanded matter, the VA medical examiner should render an
opinion as to whether, for each symptom alleged by Mr. Tyrues, the symptom is attributable to a
"known" clinical diagnosis, in light of the medical history and examination findings, and, if so, the
examiner should identify the diagnosed disorder and render an opinion as to its etiology and date
of onset. R. at 274. At the time it rendered the 1998 decision, the Board furnished Mr. Tyrues a
notice concerning his appellate rights, which included notification that he could appeal the decision
with regard to matters that had not been remanded. R. at 275-76. Mr. Tyrues did not file a Notice
of Appeal (NOA) of this Board decision.
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In December 1998, Mr. Tyrues underwent a second VA examination. R. at 285-87. The
examiner reviewed Mr. Tyrues's claims file and opined that "[t]he history obtained from the veteran,
the claim folder review, and the examination findings indicate that the veteran probably has chronic
bronchitis, which gets worse when he gets exposed to dust, paint, etc." R. at 287.
In February 2000, the Board denied Mr. Tyrues's claim for disability compensation for
"shortness of breath as a chronic disability resulting from an undiagnosed illness" because it found
the evidence of record did not establish presumptive service connection. R. at 313. In December
2000, the Court vacated the February 2000 Board decision and remanded the matter to the Board
pursuant to the parties' joint motion for remand. See R. at 339. The Court ordered that VA provide
Mr. Tyrues a respiratory examination and that it accomplish any notification and development
required under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096. R. at 340-41. In December 2001, Mr. Tyrues underwent a VA medical examination during
which the examiner, Dr. Plump, diagnosed Mr. Tyrues as having "mild chronic bronchitis" with a
history of refractory pneumonia and stated his "medical opinion that the patient's shortness of breath
due to an undiagnosed illness is at least as likely as not due to the Gulf War service." R. at 350.
In July 2002, the Board's Case Development Unit (CDU) found that because Dr. Plump had
attributed Mr. Tyrues's symptoms to both chronic bronchitis and to an undiagnosed illness, the
results of the December 2001 VA examination were inconsistent, and additional development was
needed. R. at 365-66. It ordered a further examination, by another examiner. It directed that the
new examiner must (1) identify the diagnosed disorder to which he attributed any of Mr. Tyrues's
symptoms; (2) explain his diagnosis; and (3) render an opinion as to the etiological basis and date
of onset of such diagnosed disorder. R. at 371-72. Or, if the examiner was "unable to attribute the
identified symptoms to a diagnosable disorder, he should so indicate" and also indicate "whether or
not this could be related to Gulf War service." R. at 372. In October 2002, Mr. Tyrues underwent
an additional VA medical examination, by a different VA examiner (not Dr. Plump), after which the
examiner stated that Mr. Tyrues "does not have any respiratory problems, symptoms[,] or signs at
this time. . . . In my opinion he is allergic to certain paints and vapo[r] and these occa[s]ional
respiratory symptoms are not related to the exposure of fumes in Gulf War." R. at 370. In
April 2004, the Board issued the decision on appeal here. R. at 1-12.
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II. ANALYSIS
A. Scope of the Appeal
1. Position of the Parties
The appellant argues that the Court has jurisdiction to review the September 1998 Board
decision that both denied service connection for a lung disorder on a direct basis and remanded the
issue of presumptive service connection for an undiagnosed illness manifested by shortness of
breath. The appellant asserts that the 1998 Board decision "concerns the same claim" decided by
the April 2004 Board decision here on appeal. Appellant's Brief (App. Br.) at 5. He contends that
because both decisions address the same claim, i.e., service connection for a lung disorder, he has
not lost his right to appeal the September 1998 Board decision denying direct service connection
because, under Harris v. Derwinski, 1 Vet.App. 180 (1991), it would have been premature to file
an appeal from that decision prior to the Board's finally deciding the matter of his entitlement to
service connection on a presumptive basis in the April 2004 Board decision. App. Br. at 5; Harris,
1 Vet.App. at 183 (holding that a Board decision that both denied one claim and remanded a second
claim was not final because the denied claim was inextricably intertwined with the remanded claim).
During oral argument, the appellant maintained that he was seeking compensation for one
disability, that is, a disability resulting from a lung problem (or a disability related to his lung), and
that there are two separate theories of entitlement to VA compensation for his lung disorder:
presumptive service connection under section 1117 and direct service connection. In support of his
argument, the appellant argued that under Roebuck, supra, the finality of the September 1998 Board
decision, which he contends incorrectly split the appellant's claim for service connection based on
two theories of etiology, was "held in suspense" until the Board issued the April 2004 decision, and
thus, the Court has jurisdiction to review the September 1998 Board decision.
The Secretary, on the other hand, argues that there are two separate claims involved here –
a claim for entitlement to service connection for a diagnosed disability, i.e., a diagnosed lung
condition, under the provisions of 38 U.S.C. § 11101 and a claim for entitlement to service
1
Section 1110 of title 38, U.S. Code, provides basic entitlement to compensation for a disability resulting from
an injury or disease contracted in the line of duty in active military service. 38 U.S.C. § 1110; see 38 C.F.R. § 3.303(a)
(2009) (provides compensation for "a particular injury or disease resulting in disability [that] was incurred coincident
with service"). In order to establish entitlement to direct service connection for a disability, the appellant must show (1)
"competent evidence of current disability [by way of] a medical diagnosis"; (2) "incurrence or aggravation of a disease
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connection for an undiagnosed disability under the provisions of 38 U.S.C. § 1117.2 Secretary's Br.
at 18-20. He asserts that the claims involve two separate legal and factual bases for entitlement to
service connection. Id. He contends that the Court lacks jurisdiction to review the 1998 Board
decision because the NOA was filed with the Court 5½ years after the September 1998 Board
decision, long past the 120-day filing deadline for an appeal to this Court and the record reflects no
motion for reconsideration was timely filed with the Board to toll the statutory deadline. Id. at
16-17.
As discussed below, the Court need not decide whether the appellant had two separate claims
– one for direct service connection for a lung disability and one for presumptive service connection
for a chronic disability resulting from an undiagnosed illness – or a single claim for disability
compensation based on two separate theories that might support service connection and the award
of benefits. This is because, in either case, the 1998 Board decision was a final decision, and the
appellant failed to file an NOA with the Court within 120 days after notice of the mailing of that
decision, as required under 38 U.S.C. § 7266(a) to invoke our jurisdiction.
or injury in service [by way of] lay or medical evidence"; and (3) "a nexus between the in-service injury or disease and
the current disability [by way of] medical evidence." Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table); see Hickson v. West, 12 Vet.App. 247, 252 (1999).
2
In order to establish entitlement to service connection under section 1117, the evidence must show that the
appellant is a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability; (3) which became
manifest either during active military service in the Southwest Asia theater of operations during the Persian Gulf War,
or "to a degree of 10% or more not later than [September 30, 2011]"; and the evidence must show that (4) such
symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical
diagnosis." Guiterrez v. Principi, 19 Vet.App. 1, 7 (2004). Section 1117 provides for entitlement to compensation on
a presumptive basis to a Persian Gulf W ar veteran who complains of having an undiagnosed illness that is (or illnesses
that are) 10% or more disabling during the presumptive period established by the Secretary. 38 U.S.C. § 1117(a)(1)(A)
and (B); see Gutierrez, 19 Vet.App. at 6. By definition, section 1117 only provides compensation for symptoms of a
chronic disability that have not been attributed to a "known clinical diagnosis." 38 C.F.R. § 3.317(a)(1)(ii) (2009); see
Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006) ("The very essence of an undiagnosed illness is that there is no
diagnosis."); Guiterrez, 19 Vet.App. at 10 (a Persian Gulf W ar veteran's symptoms "cannot be related to any known
clinical diagnosis for compensation to be awarded under section 1117"); 60 Fed. Reg. 6660, 6665 (Feb. 3, 1995) ("The
undiagnosed illness provisions of Public Law 103-446, as implemented by § 3.317, were specifically intended to relieve
the unique situation in which certain Persian Gulf W ar veterans found themselves unable to establish entitlement to VA
compensation because their illnesses currently cannot be diagnosed.").
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2. General Law
This Court's jurisdiction is governed by 38 U.S.C. §§ 7252(a) and 7266(a). Section 7252
provides that this Court "shall have exclusive jurisdiction to review decisions of the [Board]."
38 U.S.C. § 7252(a). Section 7266(a) provides that to obtain review by this Court "of a final
decision of the Board of Veterans' Appeal," a person "adversely affected by such decision" must
file an NOA "with the Court within 120 days after the date on which the notice of the decision is
mailed pursuant to section 7104(e) of this title." 38 U.S.C. § 7266(a). Accordingly, this Court has
appellate jurisdiction to review final Board decisions. See Breeden v. Principi, 17 Vet.App. 475,
478 (2004).
The Federal Circuit in Maggitt v. West discussed our jurisdictional statute. The Federal
Circuit held that our Court erred when it held that it did not have jurisdiction to hear arguments
raised for the first time before our Court. In reaching that decision, the Federal Circuit said that
"[t]he government is correct in the assertion that the jurisdiction of the Veterans Court by statute
only reaches to a 'decision of the Board.'" 202 F.3d 1370, 1375 (Fed. Cir. 2000) (quoting 38 U.S.C.
§ 7252(a)). The Federal Circuit then said: "A 'decision' of the Board, for purposes of our Court's
jurisdiction under section 7252, is the decision with respect to the benefit sought by the veteran:
those benefits are either granted . . . , or they are denied." Id. at 1376. In Kirkpatrick v. Nicholson,
the Federal Circuit subsequently noted that this definition of "decision" in section 7252 was "in line
with the definition of a Board decision in 38 U.S.C. § 7104, the Board's jurisdictional statute," which
provides that "'[e]ach decision of the Board shall include– . . . an order granting appropriate relief
or denying relief.'" 417 F.3d 1361, 1364 (Fed. Cir. 2005) (quoting 38 U.S.C. § 7104(d)).
The Board's 1998 decision in this case contained an order denying relief. See Maggitt, supra.It specifically denied benefits – entitlement to service connection for a lung disorder on a direct
service-connected basis. Pursuant to its remand directives, however, the Board decision also left
open the possibility that the appellant may be entitled to benefits for a chronic disorder manifested
by shortness of breath, due to an undiagnosed illness, on a presumptive basis. Therefore, the Court
must decide whether the remand of entitlement to service connection for a chronic disorder
manifested by shortness of breath rendered nonfinal the Board's decision to deny benefits for a lung
condition based on direct service connection. In other words, the question is whether the 1998
Board decision that adversely resolved direct service connection for a lung condition and also
8
remanded to the RO another matter was "final" with regard to the resolved matter for purposes of
judicial appeal to this Court such that the appellant was required to appeal that decision within 120
days after it issued.
3. Roebuck and Joyce
In resolving the question, the Federal Circuit's remand of the instant case suggested that we
specifically consider two recent decisions. We first consider this Court's decision in Roebuck, supra,
where the Court addressed the finality of a Board decision. The Court notes that Roebuck, by its
terms, involved a "unique" set of circumstances where the Board issued a decision in two separate
parts, explicitly stating its intent to do so, without remanding a matter to the RO. Roebuck,
20 Vet.App. at 316. Specifically, Mr. Roebuck claimed entitlement to service connection for a lung
disorder as secondary to tobacco use and nicotine dependence and also as secondary to asbestos
exposure. In December 2002, the Board issued a decision denying service connection for a lung
disorder as secondary to nicotine dependence and, in the same decision, expressly stated that it
would also issue a separate decision concerning the asbestos exposure theory of causation. Less
than one year later, the Board issued another decision denying service connection for a lung disorder
as secondary to asbestos exposure. Id. at 317. The Court held that the first Board decision was not
final where, "in the unique circumstances" presented, the Board (1) bifurcated its decision of Mr.
Roebuck's lung disorder claim, (2) denied service connection for a lung disorder under a nicotine
dependence theory, and (3) "stated that it would 'prepare a separate decision addressing [the issue]'
of service connection for a lung disorder under an asbestos exposure theory." Id. at 309, 316.
The Roebuck Court held that
when a claimant raises more than one theory in support of a claim during the time
while that claim is still pending before VA, if the Board bifurcates those theories or
arguments and addresses them in separate decisions, the time for appeal is not ripe
until the Board issues a final decision denying all theories [and, u]nder those
circumstances, the 120-day requirement for filing a[n NOA] will not begin to run
until the Board has denied all theories in support of the claim that it has identified
for consideration.
Id. at 315-16 (emphasis added). In holding that the first Board decision was nonfinal, the Court
noted that "to adjudicate a claimant's appeal of one theory of a claim while the Board is still
deliberating on another theory supporting that same claim, our efforts would be potentially
duplicative and unnecessary." Id. at 315 (emphasis added). Thus, among the unique circumstances
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of Roebuck was the Board's issuance of its decision in two parts without remanding either theory to
the RO for further development and readjudication. Id. at 316 (noting that the Board's decision "was
issued by the Board in two parts separated by less than a year"). Accordingly, Roebuck is limited
to the situation where the Board, in its decision denying one theory, specifically states that the Board
will be issuing, without a remand to the RO, a second decision on another theory of the same claim.
To read Roebuck more broadly creates a new exception to the rule of finality and ignores the fact
that Roebuck explicitly was based on unique circumstances.
Thus, Roebuck is not dispositive of the issue here regardless of whether the appellant is
deemed to have filed two separate claims or one claim. First, if we assume the appellant sought
benefits for two separate disabilities – a diagnosed lung disorder, described as both pneumonia and
bronchitis, and an undiagnosed chronic condition manifested by shortness of breath alleged to be
the result of his service in the Persian Gulf – Roebuck is simply inapposite because the Court in that
case found that there was one claim. Id. at 315-16; see also Elkins v. Gober, 229 F.3d 1369, 1376
(Fed. Cir. 2000) (holding that "[b]ecause . . . each 'particular claim for benefits' may be treated as
distinct for jurisdictional purposes, a veteran's claims may be treated as separable on appeal").
Second, if we assume the appellant raised two theories in support of a single claim for VA benefits
for a lung condition – direct service connection and presumptive service connection available to
Persian Gulf War veterans – the facts are distinguishable from Roebuck because here the Board
issued a final decision with regard to benefits based upon direct service connection, and remanded
to the RO for consideration of benefits based upon presumptive service connection, whereas in
Roebuck, the Board denied one theory and expressly stated that it would issue a second Board
decision on the second theory.
We next consider the Federal Circuit's decision in Joyce, supra, which held that a decision
of our Court was not final where our Court had affirmed in part, reversed in part, and vacated in part
a Board decision finding no clear and unmistakable error (CUE) in an RO decision denying
disability compensation benefits and remanding a matter to the Board. 443 F.3d at 849-50. Our
Court affirmed the Board's determination of no CUE as to the RO's finding that the presumption of
soundness was rebutted. We reversed the Board determination of no error in the RO finding that
the presumption of aggravation had been rebutted under the applicable regulation and remanded for
the Board to determine whether the RO's error was outcome determinative. We vacated the Board's
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denial of CUE and remanded for readjudication on the service-connection question. The appellant
appealed to the Federal Circuit.
The parties in Joyce disagreed as to whether there was a single claim – one for service
connection that is established either through the presumption of soundness or the presumption of
aggravation – or two separate claims – one for service connection and one for aggravation. The
Federal Circuit stated that it need not decide which view of the underlying claims was correct
because under either view "there is a lack of finality." 443 F.3d at 849. The Federal Circuit
concluded that if there is only a single claim, review by the Federal Circuit was unavailable because
the remand order did not satisfy the test announced in Williams v. Principi, 275 F.3d 1361 (Fed. Cir.
2002), which held that the Federal Circuit may review a nonfinal remand order if three conditions
were met. Joyce, 443 F.3d at 850. The Federal Circuit stated that if there were separate claims for
service connection and aggravation, Elkins, 229 F.3d at 1376, was applicable, and the "assertedly
separate claims are inextricably intertwined because both claim compensation for the same
disability." 443 F.3d at 850. The Federal Circuit concluded that "[r]eview of the Veterans Court's
decision as to the service connection claim is unavailable under Elkins because it would 'disrupt the
orderly process of adjudication.'" Id.We conclude that the Federal Circuit's decision in Joyce, similar to Roebuck, does not answer
the question now before the Court. Joyce discussed the reviewability of decisions of this Court by
the Federal Circuit. Joyce did not discuss the finality of a Board decision and the jurisdictional basis
on which this Court reviews Board decisions. In Joyce, the Federal Circuit expressly noted: "Our
review of decisions of the Court of Appeals for Veterans Claims is governed by 38 U.S.C. § 7292.
While that statute does not explicitly impose a final judgment requirement, we have nonetheless
'generally declined to review nonfinal orders of the Veterans Court' on prudential grounds."
443 F.3d at 849 (quoting Williams, 275 F.3d at 1363). Accordingly, the Federal Circuit in Joyce did
not review or interpret the statutes from which this Court derives its jurisdiction – 38 U.S.C.
§§ 7252(a) and 7266(a). To the extent Joyce is argued to be instructive, it did not resolve the issue
of one claim versus two claims, instead finding that either approach would yield the same result.
And, it did not resolve the issue of whether a decision deemed final by the Board with regard to one
claim or one theory supporting a claim for benefits, and for which notice of appellate rights had been
provided to the claimant – but for which no appeal was filed within 120 days of that Board decision
11
– nevertheless could be appealed when the Board ultimately rendered a decision on the remaining
claim or theory that might support an award of benefits.
4. Elkins and Administrative Finality
In Elkins, the Federal Circuit provided guidance as to the applicable jurisdictional finality
standard in the context of appeals from decisions that do not dispose of all claims but instead include
a remand. Elkins established that judicial review is available for a claim for which final judgment
has been entered even if other claims presented in the same appeal have been remanded. Id. The
Federal Circuit in Elkins held that it had jurisdiction to review the veteran's headache claim and neck
argument on appeal from our Court notwithstanding our remand of the veteran's back claim and
notwithstanding the fact that all claims were related to the same accident and were presented to this
Court in a single appeal. Elkins, 229 F.3d at 1374. This Court had affirmed the Board's denial of
the headache claim and had rejected Mr. Elkins's argument that the medical evidence regarding his
headaches also established a claim for service-connected neck pain. The Federal Circuit explained
that in deciding that it could treat the claims as separable on appeal, it was adopting the approach
in Dewey Electronics Corp. v. United States, 803 F.2d 650, 654 (Fed. Cir. 1986). The Federal
Circuit stated that "[t]he relevant consideration, in determining whether an administrative
adjudication is sufficiently 'final' is 'whether the process of the administrative decision-making has
reached a stage where judicial review will not disrupt the orderly process of adjudication and
whether rights or obligations have been determined or legal consequences will flow from the agency
action.'" Elkins, 229 F.3d at 1373 (quoting Dewey, 803 F.2d at 654). Applying this Elkins standard
to an appeal from our Court, the Federal Circuit concluded that, because the legal issues presented
on appeal were all distinct (i.e., whether Mr. Elkins had presented "new and material evidence"
sufficient to reopen his claim for back injuries, whether he had presented a "well grounded" claim
for headaches, and whether the medical reports furnished with his headache claim support a claim
for neck injuries), its review of our Court's decision with respect to the headache and neck matters
would not "disrupt the orderly process of adjudication below with respect to the remanded [back
injury] claim." Id. at 1375-76.
In discussing its practice of treating a veteran's distinct issues as separable on appeal (and
in allowing sequential appeals on separate issues or claims), the Federal Circuit in Elkins discussed
its prior decisions regarding similar matters. See Elkins, 229 F.3d at 1374-75. The Federal Circuit
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noted its prior holdings that a veteran's overall claim for benefits is comprised of separate issues and
that our Court has jurisdiction to consider an appeal concerning one or more of those issues. See,
e.g., Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (elements of a claim may be
appealed sequentially to U.S. Court of Appeals for Veterans Claims); see also Barrera v. Gober, 122
F.3d 1030, 1032 (Fed. Cir. 1997) (holding that the U.S. Court of Appeals for Veterans Claims has
jurisdiction to review a decision concerning one of the issues that comprise a claim, i.e., the issue
of disability rating). The Federal Circuit stated that, unlike district court cases where a plaintiff must
present all claims for relief arising from an event in a single complaint and then appeal all at once,
"there is no requirement that a veteran's various claims for relief be simultaneously filed and
adjudicated, either upon initial review or on appeal." Elkins, 229 F.3d at 1375. The Federal Circuit
further stated: "Rather, we have recognized that the unique statutory process of adjudication through
which veterans seek benefits may necessarily require that the different issues or claims of a case be
resolved at different times, both by the agency of original jurisdiction and on appeal." Id.Against this backdrop, we conclude that a final Board decision denying VA disability
compensation based upon direct service connection, while the consideration of benefits based upon
presumptive service connection is still under adjudication, constitutes a final decision subject to
separate appeal to the Court.3 Our conclusion is consistent with the recognition in Elkins that VA's
"unique statutory process of adjudication" does not necessarily require different issues to be resolved
all at once. See Elkins, 229 F.3d at 1375-76. In meritorious cases where the Board denies benefits
based on a particular issue with distinct criteria and remands for further adjudication another issue
of establishing entitlement to benefits, a veteran might otherwise have to wait years for resolution
and possibly benefits to which he or she is entitled. Indeed, as illustrated by the circumstances in
the instant case, it took VA more than five years after its decision denying direct service connection
3
The Court recognizes the Federal Circuit's decision in Bingham v. Principi, 421 F.3d 1346 (Fed. Cir. 2005),
which held that all theories of service connection were disposed of when the Board decision there had denied service
connection. Unlike the factual circumstances presented in Bingham, however, where the Board denied a claim for
service connection on one theory and was silent as to other theories of service connection, in the present case, the Board
specifically remanded a separate theory for development, thereby foreclosing any argument that its denial of direct
service connection could be interpreted as a final decision on the separate theory of presumptive service connection.
See also D'Aries v. Peake, 22 Vet.App. 97 (2008) (exercising jurisdiction over appeal of Board decision that denied
service connection for cause of veteran's death even while claim for DIC was denied in a separate Board decision and
remanded in a separate Court decision); Andrews v. West, 16 Vet.App. 384 (1999) (table) (exercising jurisdiction over
appeal of Board decision denying benefits based on direct service connection while benefits based on secondary service
connection were still being adjudicated).
13
for a lung disability under section 1110 to complete the remand proceedings pertaining to
entitlement to the presumption of service connection for undiagnosed illnesses incurred in, or
manifested during a presumptive period following, service in the Persian Gulf under section 1117.
In addition, to require a final decision with respect to all claims for benefits, or theories in
support of a claim for benefits – regardless of whether they raise distinct questions, are based on
different statutory provisions, or rely on different causes of a disability – may have the unintended
effect of encouraging the Board to delay making a determination on any matter until all matters are
fully developed and ready for disposition. In such a case, if the Board decides one matter and
remands another matter, when the remanded matter is later ready for the Board's disposition (after
all instructions on remand have been fulfilled), the Board would be required to revisit its decision
on the first matter to ensure that it currently complies with all law and regulations. It is unlikely that
the Board will spend its resources adjudicating the first matter if that were the law, and the Board
might very well decide that it would be more efficient to delay any adjudication until all claims for
benefits, or theories in support of a claim for benefits, were ready for a decision. The veteran would
thus be denied the opportunity of judicial review of an adverse decision until all issues addressed
in the Board decision or all possible bases for supporting a claim for benefits have been finally
decided. Such an outcome would serve neither the veteran nor the VA's interest in providing a
timely award of benefits or achieving final resolution of claims.
5. Reviewability Versus Finality of a Board Decision
The Court recognizes that this Court's decision in Harris discussed this Court's jurisdictional
statutory requirement of a "final Board decision" and the question of when a Board decision is
appealable. 1 Vet.App. at 181-83. In Harris, the Court held that a Board decision that denied an
increased rating for service-connected anxiety neurosis was not a final decision over which this
Court had jurisdiction because the claim was "inextricably intertwined" with a claim for service
connection for a heart disorder that the Board had referred to the RO. Id. at 183. The Court in
Harris stated that it would neither review Board decisions "in a piecemeal fashion nor unnecessarily
interfere with the [VA] deliberative process." Id. The Court stated:
A decision by the RO to grant appellant's referred heart disorder claim could have
a significant impact upon appellant's claims for an increased rating for anxiety
neurosis. This, in turn, could render any review by this Court of the decision on the
anxiety neurosis claim meaningless and a waste of judicial resources.
14
Id. at 183. Accordingly, the Court determined that piecemeal review could render a decision on one
claim "meaningless" and would be a "waste of judicial resources." Id. The Court noted that the
evidence in support of both claims was "replete with statements that the veteran's mental state was
a result of his physical condition," and further noted that the crux of the appellant's claim for benefits
was that "his heart disorder [was] the cause of his anxiety neurosis." Id. Because the claims
appeared "so closely tied" together, the Court concluded that the Board decision did not constitute
a final decision and dismissed the appeal for lack of jurisdiction. Id.
The Harris court determined that a holding by the Court that claims are inextricably
intertwined – i.e., where a referred claim could have a significant impact on a denied claim that is
being appealed – mandates dismissal of the appeal. The Court today overrules Harris to the extent
it stands for the proposition that this Court has no jurisdiction over a Board decision that denied a
claim if that claim is "inextricably intertwined" with another claim that the Board remanded. The
Court has jurisdiction over such matters on direct appeal, but may decline to exercise its jurisdiction
in such cases, as we frequently do. See, e.g., Hunt v. Nicholson, 20 Vet.App. 519, 525-26 (2006)
(declining to review denial of entitlement to vocational rehabilitation benefits and remanding for
readjudication because issue was dependent on – "inextricably intertwined" with – whether, on
remand, the Board reopens and grants a claim for service connection) (citing Harris, supra); Anglin
v. West, 11 Vet.App. 361, 367 (1998) (remanding claim for a bladder disorder, for which there was
medical evidence that it was connected to a back problem, because it was "inextricably intertwined"
with a claim for a back condition that the Court was remanding) (citing Harris, supra); Holland v.
Brown, 6 Vet.App. 443, 447 (1994) (holding that a Board decision denying an increased rating for
service-connected rheumatoid arthritis is final even though Board referred to RO "a TDIU rating
claim" based on rheumatoid arthritis because referred claim "may not necessarily affect the claim
on appeal"). Overruling Harris, we now hold that where a Board decision purports to be a final
decision, the Board issues a notice of appellate rights, and the appellant timely appeals to the Court,
this Court has jurisdiction to review the Board decision for error. However, on review, the Court
retains its discretion to determine at the threshold that a claim or theory denied by the Board in any
such decision or portion of a decision on review is so inextricably intertwined with matters still
15
pending before VA that it should be remanded to VA to await development or disposition of a claim
or theory not yet finally decided by VA.4
We make clear today, that this Court's jurisdiction to review a Board decision denying a
claim is not controlled by whether the claim denied by the Board is "inextricably intertwined" with
another claim that was either remanded or referred by the Board to the RO because the facts
underlying the two claims are so closely tied together. Rather, this Court's jurisdiction is controlled
by whether the Board issued a "final decision" – i.e., denied relief by either denying a claim or a
specific theory in support of a claim and provided the claimant with notice of appellate rights.
38 U.S.C. § 7266(a); see Percy v. Shinseki, 23 Vet.App. 37, 45-46 (2009) (noting imprecise use of
term "jurisdictional" in caselaw and VA regulations); see also Bowles v. Russell, 127 S. Ct. 2360,
2365-66 (2007) (defining as jurisdictional, limits in statute as to when and under what conditions
a court may hear a case). We hold that only after the Court determines that it has jurisdiction does
it then engage in consideration of questions concerning whether the appeal involves multiple claims
or issues that are inextricably intertwined. If we find that the matter on appeal is inextricably
intertwined with an issue or claim still pending before VA, the Court generally will decline, for
reasons of judicial economy or on prudential grounds, to review the merits of the claim or issue
adjudicated in the Board decision then before the Court, and remand it for further adjudication, as
appropriate, with the other "inextricably intertwined" matters still being adjudicated below.
Following today's decision, a claimant will no longer be presented with the dilemma of
whether he should appeal or risk having his right to appeal vitiated for failure to timely appeal. See,
e.g., Gurley v. Nicholson 20 Vet.App. 573, 575 n.1 (2007). It is not the Court's province to dictate
how VA implements its statutory authority to dispose of appeals in a timely and efficient manner
so long as it permissibly does so within controlling statutes. See Ramsey v. Nicholson, 20 Vet.App.
4Contrary to the view expressed by Judge Hagel in his separate opinion, we observe that this Court's decision
in Harris v. Derwinski, 1 Vet.App. 180 (1991), is implicated, and its discussion necessary, regardless of whether this
case involves one claim or two claims. Even if this Court were to hold that there are two claims involved here, Harris
dictates that we determine, as part of this appeal, whether the "claim" for service connection for a lung condition on a
direct basis that was denied in 1998 is "inextricably intertwined" with the "claim" for presumptive service connection
for a chronic disability resulting from an undiagnosed illness based on service in the Persian Gulf. If so, Harris would
not have permitted this Court to have jurisdiction over an appeal filed within 120 days of the 1998 denial but would
permit jurisdiction now to review the 1998 denial as part of the current appeal of the denial of service connection under
the presumptive provisions for Persian Gulf W ar veterans. Because a determination as to whether claims are inextricably
intertwined does not properly determine this Court's jurisdiction, we overrule that aspect of Harris.
16
16, 27 (2006) ("The general authority of the Secretary to interpret and apply the relevant law and
of the Board to dispose of appeals in a timely manner authorizes the Secretary to manage the Board
in its dispositions of cases and to consider the relevant law in its control of the dispositions of the
appeals pending on the Board's docket and to do so with economy of time and effort.").
While it does not fall to this Court to design or redesign the VA adjudication process, it is
our province to consider a timely appeal from a claimant who has been denied relief based on one
theory, has received notice of his appellate rights, and who argues that the Board erred in issuing
the denial. See, e.g., Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 821
(1976) (Stewart, J., joined by Blackmun and Stevens, JJ., dissenting) ("[F]ederal courts have a
'virtually unflagging obligation . . . to exercise the jurisdiction given them.'"). In such a case, the
Court can then determine whether the benefits denied or limited are inextricably intertwined with
a remanded issue or claim, or whether the Board erred in issuing the denial or limitation of benefits
that was appealed. Parties are well-served by a process that allows the Court to review assertedly
final decisions to determine (1) whether one issue on which the Board denied benefits is inextricably
intertwined with other issues that the Board remanded, and (2) whether such a Board decision should
be reversed, modified, or the matter remanded, based on Board error, including misapplication of
the law, failure to develop a complete record, or other defects that would otherwise not be addressed
for years thereafter. By a veteran's timely exercise of appellate rights, errors by the Board may be
corrected as early in the process as possible, rather than many years later, when remand proceedings
on a separate matter are completed. Claimants not satisfied with a clear, final decision of the Board,
accompanied by notice of their appellate rights, should appeal any such decision in a timely manner
(or request Board reconsideration) to preserve those appellate rights. A claimant should understand
that "Board denial" on the issues coupled with a notice of appellate rights means "file an appeal or
the denial becomes final," because it is in the control of the claimant, not the Court or the Secretary,
whether to appeal once the Board issues its decision. If an appeal is filed, the Court will determine
issues of finality and whether the issues or claims are inextricably intertwined on a case-by-case
basis. Failure of a claimant to appeal (or seek reconsideration) presents the risk, as we see in the
case before us, that the matters finally decided by the Board will not be appealable after the time to
appeal passes.
17
B. The Finality of the September 1998 Board Decision
In the September 1998 decision, the Board considered the issues of appellant's entitlement
to benefits for a lung disability based either directly or through the presumption of service-
connection under section 1117. The Board took two actions with respect to his appeal for benefits.
First, the Board denied benefits based on entitlement to service connection on a direct basis. R. at
272 ("The claim for entitlement to service connection for a lung disorder on a direct basis is
denied."). The Board determined that there was "no competent medical evidence linking the
veteran's current lung disorder on a direct basis to service" (R. at 267), and thus found that issue not
"well-grounded"5 (R. at 267, 271). Second, the Board remanded, for further development,
entitlement to service connection under 38 U.S.C. § 1117 for a chronic disorder manifested by
shortness of breath, due to an undiagnosed illness, secondary to Persian Gulf War service. R. at 272.
The Board stated that it was "unclear whether there [was] medical evidence to support the veteran's
claimed respiratory symptoms or whether any of the symptoms are affiliated with a diagnosed
illness" and directed the RO to schedule a VA Persian Gulf examination. R. at 273-74.
At the time of the 1998 decision, the Board considered its denial final and so notified the
appellant. At the time the Board issued its September 1998 decision, the Board notified the
appellant as follows:
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.[] § 7266 . . . , a decision of
the Board of Veterans' Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to [the Court] within 120 days from the date of
mailing of notice of the decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. . . . The date that appears on the face of
this decision constitutes the date of mailing and the copy of this decision that you
have received is your notice of the action taken on your appeal by the Board of
Veterans' Appeals. Appellate rights do not attach to those issues addressed in the
remand portion of the Board's decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. § 20.1100(b) (1997).
5
The law in effect in 1998 provided that claims must be "well grounded" in order to invoke VA's duty to assist
in their development. See 38 U.S.C.§ 5107. The Veteran's Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (Nov. 9, 2000), amended section 5107 to eliminate the requirement of well-groundedness. See Luyster v.
Gober, 14 Vet.App. 186 (2000) (per curiam order).
18
R. at 275-76. As quoted above, the Board specifically noted that the appellate rights did not attach
to the matter that was remanded, which constituted only a "preliminary" decision of the Board, and
that a remand "does not constitute a decision of the Board on the merits of your appeal." R. at 276.
The Board's notice, therefore, informed the appellant that the appellate rights pertained to the
Board's denial of service connection for a lung disability on a direct basis, as the matter that was not
remanded. R. at 276. This is consistent with the Court's caselaw that the Board's remand of a
veteran's claim is not an adverse final decision over which the Court had jurisdiction. See Acosta
v. Principi, 18 Vet.App. 53, 59 (2004); Breeden, 17 Vet.App. at 475. The appellant was thus on
notice that VA considered the September 1998 decision of the Board to be a final decision on direct
service connection for a lung disability. The Court notes that the appellant does not raise any
argument that challenges either the sufficiency of the notice of appellate rights accompanying the
Board decision or his receipt of that decision or his receipt of the notice of appellate rights.
See App. Br. at 1-16; Reply Br. at 1-7.
The appellant did not file an NOA of the Board's September 1998 decision within 120 days
of the date that VA mailed notice of the September 1998 decision to him nor did he seek
reconsideration from the Board. See Reed v. Peake, 23 Vet.App. 64 (2008) ("The only exception
to this 120-day rule is in those cases in which the claimant has (1) filed a motion for Board
reconsideration within 120 days after the mailing date of the Board's decision; and then (2) filed an
NOA within 120 days after the Board Chairman has denied the reconsideration motion); Rosler v.
Derwinski, 1 Vet.App. 241, 249 (1991). Just as an appellant has an obligation to cooperate in the
development of evidence pertaining to his claim because failure to do so could subject him to the
risk of an adverse adjudication based on an incomplete and underdeveloped record, see Kowalski
v. Nicholson, 19 Vet.App. 171, 178 (2005), failure to appeal a purportedly final Board decision may
adversely affect an appellant if the Court agrees that the decision is final and therefore we have no
jurisdiction over the claim. Thus, as stated above, veterans who receive a purportedly final decision
denying benefits from the Board should timely appeal that denial, regardless of whether other claims
or issues remain pending, or they run the risk of finding years later that in failing to appeal they have
thereby forfeited their appellate rights concerning the earlier decision. Here, rather than protecting
his appellate rights at the time of the 1998 Board decision, the appellant waited and only filed an
19
NOA after the April 2004 Board decision. He now argues that the September 1998 decision was
not final (App. Br. at 5), but that argument is not persuasive.
Based on the totality of the circumstances of this case, the Court holds that the
September 1998 Board decision was final concerning the issue of section 1110 compensation for
direct service connection for a lung disability. See Bingham, 421 F.3d at 1349 ("We cannot create
a third exception to the rule of finality."); Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002)
(en banc) (recognizing only two statutorily recognized exceptions to the rule of finality, neither of
which are applicable here). Because the appellant did not file an NOA within 120 days after VA
mailed notice of the Board's final September 1998 decision, the Court lacks jurisdiction to review
the September 1998 Board decision. See 38 U.S.C. § 7266(a).6 The Court is thus limited to a review
of the merits of the April 2004 Board decision denying service connection on a presumptive basis
for symptoms of a chronic disability resulting from an undiagnosed illness from military service in
the Persian Gulf.
C. Merits of the August 2004 Board Decisions
With regard to the April 2004 Board decision, the appellant argues only that the Board erred
because it had a duty, under 38 C.F.R. § 19.9, to seek clarification of Dr. Plump's December 2001
medical opinion "before[,] or in addition to," ordering an additional VA medical examination. App.
Br. at 10. He contends that, in ordering an additional VA medical examination in lieu of seeking
clarification of Dr. Plump's opinion, VA violated its duty to assist. App. Br. at 10-12. At oral
6
In viewing the September 1998 Board denial as a nonfinal decision, our colleagues, Judges Lance and
Schoelen, read our panel decision in Roebuck as creating a new exception to the rule of finality that is inconsistent with
established precedent. See Cook, 318 F.3d at 1337 (discussing two statutory exceptions to the rule of finality: (1) a
finding of clear and unmistakable error under 38 U.S.C. 5109A or 7111, and (2) the receipt of new and material evidence
to reopen a claim under section 5108); see also Knowles v. Shinseki, 571 F.3d 1167 (2009) (noting that "the law does
not recognize a freestanding 'finality claim' filed after the period for direct review has expired"). Contrary to this view,
we observe that if Mr. Tyrues believed that the Board had erred in 1998 in denying him relief under a direct theory of
service connection, his avenue to remedy that error was to file a direct appeal of the 1998 Board decision and argue for
a remand to correct any errors, including any error in adjudicating the matter or in not remanding the matter for further
development. Moreover, the dissent ignores our caselaw in which this Court reviews a Board decision and determines
whether a matter decided by the Board is inextricably intertwined with a matter remanded to the Agency. See, e.g.,
Bagwell v. Brown, 9 Vet.App. 337, 339-40 (1996). In addition, our colleagues' current view is difficult to reconcile with
their recent opinion in Brokowski v. Shinseki, 23 Vet.App. 79, 86-90 (2009) (exercising jurisdiction and affirming Board
decision as to effective date issue even though Board had remanded the issue of an appropriate disability rating).
Significantly, the dissent's current view disregards the Court's role in providing prompt judicial review of Board decisions
that deny relief to veterans and would have this Court's role reduced to a small, flickering light of hope at the end of the
seemingly endless processing tunnel that often characterizes VA adjudications.
20
argument, counsel for the appellant asserted that VA's request for an additional medical examination
"impermissibly narrowed" VA's consideration of Dr. Plump's December 2001 opinion and that the
appellant was prejudiced by VA's failure to seek clarification of Dr. Plump's opinion because his
opinion was favorable evidence that, if clarified, could have substantiated the appellant's claim for
service connection on a presumptive basis for symptoms of an undiagnosed illness.
The Board's CDU noted that in providing the December 2001 VA medical opinion,
Dr. Plump "found that the veteran suffered from a known diagnosis of mild chronic bronchitis, but
offered an opinion that the veteran's 'shortness of breath due to undiagnosed illness [was] at least
as likely as not due to his Gulf War service.'" R. at 365. The CDU concluded that because "these
findings appear to be inconsistent, another examination must be scheduled." Id. The CDU then
ordered that VA schedule the appellant for a VA Persian Gulf examination and indicated that the
appellant "must be scheduled with an examiner other than the examiner of 12/13/01, Dr. Plump."
Id.At the time of the CDU's July 2002 request, § 19.9 provided, in relevant part:
(a) General. If further evidence, clarification of the evidence, correction of a
procedural defect, or any other action is essential for a proper appellate decision, a
Board Member or panel of Members may:
(1) Remand the case to the agency of original jurisdiction, specifying the action
to be undertaken; or
(2) Direct Board personnel to undertake the action essential for a proper appellate
decision.
38 C.F.R. § 19.9 (2002). The plain language of § 19.9 does not limit the Board to seeking
clarification of the evidence, nor has the Court adopted the "mandatory clarification" interpretation
of § 19.9 that the appellant advances in his brief. Rather, the regulation contemplates situations in
which the Board may choose to obtain "further evidence" instead of requiring clarification of the
existing evidence; and, it is well established that the Board has the discretion to determine whether
further development is needed to make a decision on a claim. 38 C.F.R. § 19.9(a) (2002); see
Shoffner v. Principi, 16 Vet.App. 208, 213 (2002); Winsett v. West, 11 Vet.App. 420, 426 (1998)
("[W]hether the Board chooses to refer a particular case for an independent medical opinion is
entirely within its discretion."); see also 38 U.S.C. § 7109(a) (the Board may seek an advisory
medical opinion when such an opinion "is warranted by the medical complexity or controversy
21
involved"); 38 C.F.R. § 3.304(c) (2009) ("The development of evidence in connection with claims
for service connection will be accomplished when deemed necessary.").
However, it is equally well established that VA must develop claims and gather evidence in
a neutral manner. See Austin v. Brown, 6 Vet.App. 547, 553 (1994) ("[B]asic fair play requires that
evidence be procured by the agency in an impartial, unbiased, and neutral manner."). In seeking a
medical opinion, VA "may not suggest an answer or limit the field of inquiry by the expert."
Bielby v. Brown, 7 Vet.App. 260, 268 (1994); see Colayong v. West, 12 Vet.App. 524, 534 (1999)
(holding that the RO's request to a VA medical examiner to "feel free to refute the private
physician's report" was fatally flawed and compromised the fairness of the adjudication process).
Moreover, "VA may not pursue . . . development if the purpose is to obtain evidence against the
claim." Hart v. Mansfield, 21 Vet.App. 505, 508 (2007); see Mariano v. Principi, 17 Vet.App. 305,
312 (2003) ("Because it would not be permissible for VA to undertake such additional development
if a purpose was to obtain evidence against an appellant's case, VA must provide an adequate
statement of reasons or bases for its decision to pursue further development where such development
reasonably could be construed as obtaining additional evidence for that purpose."); Rose v. West,
11 Vet.App. 169, 172 (1998) (noting that "it is not the function of judicial review simply to accord
the government a remand to obtain . . . evidence" that rebuts the appellant's showing of a nexus
between his in-service injury and a current diagnosed disability).
In its April 2004 decision, the Board found that VA "ha[d] made reasonable and appropriate
efforts to assist the appellant in obtaining the evidence necessary to substantiate the claim currently
under consideration, to include several VA examinations." R. at 4. With regard to Dr. Plump's
December 2001 medical opinion, the Board noted "that despite the finding of an undiagnosed illness
relating to respiratory symptomatology, it is noteworthy that the examiner did indeed offer a specific
diagnosis of mild chronic bronchitis." R. at 11. The Board found that "[a] diagnosis of both an
undiagnosed illness and a diagnosed condition pertaining to the same symptoms is inconsistent."
R. at 11-12.
Dr. Plump rendered the following opinion in December 2001:
DIAGNOSIS: 1) Mild chronic bronchitis. 2) Diffusion capacity and spirometry
within normal limits. 3) Refractory pneumonia March 1994.
22
OPINION: It is this provider's medical opinion that the patient's shortness of breath
due to an undiagnosed illness is at least as likely as not due to the Gulf War service.
This provider is unable to render an opinion as to the etiological basis of the disorder
and its date of onset.
R. at 350.
Accepting the Board's view that Dr. Plump's diagnosis and opinion are inconsistent,7 it is
wholly unclear why the Board directed that VA provide a new medical examination, rather than
simply seek clarification of Dr. Plump's opinion. It is equally unclear why the Board directed that
the new examination be provided by an examiner "other than" Dr. Plump. R. at 365.
The Board's failure to adequately explain the reasons for its order leaves the Court to
speculate as to its reasoning; such speculation reasonably includes the possibility that the purpose
was to avoid a possible favorable opinion from Dr. Plump. This is not permitted. See Austin, supra;
see also Hart, Mariano, and Rose, all supra. Under these circumstances, the Board's statement of
reasons or bases is inadequate. See Mariano, 17 Vet.App. at 312 ("VA must provide an adequate
statement of reasons or bases for its decision to pursue further development where such development
reasonably could be construed as obtaining additional evidence for that purpose."); Caluza,
7 Vet.App. at 506 (the Board's statement of the reasons or bases for its decision must "account for
the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative
value" of the evidence, and "provide the reasons for its rejection of" any material evidence favorable
to the appellant). The Board's rejection of Dr. Plump's December 2001 VA medical opinion, without
seeking clarification or adequately explaining why such clarification was unnecessary, frustrates
appellate review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (the Board's statement of the
reasons or bases for its decision "must be adequate to enable a claimant to understand the precise
7
Although the Board's view is that Dr. Plump's opinion is inconsistent with his diagnosis, the Court notes that
it is also possible that Dr. Plump intended to diagnose the appellant as having both mild chronic bronchitis and an
undiagnosed illness manifested by shortness of breath. Pursuant to 38 U.S.C. § 1117, governing compensation for
disabilities occurring in Persian Gulf War Veterans, compensation is available for either an undiagnosed illness or a
"medically unexplained chronic multisymptom illness," manifested by "signs or symptoms involving the upper or lower
respiratory system." 38 U.S.C. § 1117(a)(2)(B), (g)(8). Dr. Plump's opinion therefore need not be read as inconsistent.
Read as diagnosing the appellant as having both chronic bronchitis and an undiagnosed or "medically unexplained"
illness, Dr. Plump's opinion would be favorable evidence in support of the appellant's claim for service connection for
an undiagnosed illness.
23
basis for the Board's decision, as well as to facilitate review in this Court"). Accordingly, remand
is necessary.
On remand, and given the Board's view that Dr. Plump's diagnosis and opinion are
inconsistent, the Board either must seek clarification of Dr. Plump's December 2001 medical opinion
indicating that the appellant had an undiagnosed illness manifested by shortness of breath resulting
from Persian Gulf service; or, the Board must provide a well-reasoned statement, adequate to
facilitate the Court's review, explaining its decision not to seek such clarification. The Board must
further ensure that VA has complied with the notice requirements of 38 U.S.C. § 5103(a).
See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006) (holding that section 5103(a)
notification is not satisfied by an aggregation of pre- and postdecisional notices from which a
claimant might have been able to infer what evidence VA found lacking). On remand, the appellant
is free to submit additional evidence and to raise his arguments to the Board, and the Board is
required to consider them. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the Board's April 7,
2004, decision is VACATED and the appellant's claim for presumptive service connection for an
undiagnosed chronic condition alleged to be the result of service in the Persian Gulf under 38 U.S.C.
§ 1117 is REMANDED for further proceedings consistent with this decision. The appellant's appeal
as to matters finally decided in the September 1998 Board decision is DISMISSED for lack of
jurisdiction.
KASOLD, Judge, concurring: I fully concur in the well-reasoned opinion of the Court and
I write separately only to highlight the following three points:
1. The Court's Opinion Is Consistent With Our Precedent and Jurisdictional Statute.
Any suggestion that the opinion today is in some way a shift from our prior caselaw
regarding finality of Board decisions – based on one theory of service connection while another
theory is remanded for further adjudication – is without merit. Specifically, the Court historically
has considered that a Board decision denying benefits for a disability based on one particular theory,
24
while another theory is still being developed below, to be final for purposes of appeal and the Court's
jurisdiction over an appeal. See, e.g., Rice v. Shinseki, 22 Vet.App. 447 (2009) (exercising
jurisdiction over an appeal of a Board decision that denied an earlier effective date for TDIU even
though Board remanded the matter of an initial rating for PTSD; Court exercised its discretion to
decline review of the merits and vacated the Board's decision as to TDIU because the matter was
not fully developed, and remanded the matter for readjudication subsequent to adjudication of the
initial rating for PTSD); D'Aries v. Peake, 22 Vet.App. 97 (2008) (exercising jurisdiction over
appeal of Board decision that denied service connection for cause of veteran's death even while
claim for DIC was denied in a separate Board decision and remanded in a separate Court decision);
Andrews v. West, 16 Vet.App. 384 (1999) (table) (exercising jurisdiction over appeal of Board
decision denying benefits based on direct service connection while benefits based on secondary
service connection were still being adjudicated).
The Court also has bifurcated a claim, affirming parts of a Board decision related to a claim
for benefits while remanding for further adjudication other matters stemming from the same
decision. See, e.g., Barringer v. Peake, 22 Vet.App. 242 (2008) (affirming Board decision with
regard to schedular ratings and effective date and remanding for adjudication of extraschedular
consideration); Palczewski v. Nicholson, 21 Vet.App. 174 (2007) (affirming denial of service
connection for hearing loss while remanding for readjudication with regard to tinnitus); Harder v.
Brown, 5 Vet.App. 183 (1993) (affirming Board decision denying the reopening of a claim based
on right-knee disability based on direct service connection, and reversing denial based on secondary
service connection and remanding for further adjudication).
There are only two exceptions to our having jurisdiction over Board decisions that are final
with regard to a matter, and for which notice how and when to appeal has been provided: Harris v.
Derwinski, 1 Vet.App. 180 (1991), and Roebuck v. Nicholson, 20 Vet.App. 307 (2006). In Harris,
the Court held that when the matters remanded are inextricably intertwined with another matter for
which the Board denied benefits and stated its decision was final, the Court lacked jurisdiction to
hear an appeal over the matter declared final by the Board. 1 Vet.App. at 183. Today, we correctly
overturn that part of Harris and hold that we do indeed have jurisdiction over a Board decision that
denies benefits when the Board states its decision is final and that decision is timely appealed.
However, the Court may, for reasons of judicial economy, nevertheless remand such a decision for
25
adjudication with the matter still under administrative adjudication if the matters are inextricably
intertwined. Id.; see also Gurley v. Nicholson, 20 Vet.App. 573, 576 n.3 (2007) (recognizing the
dilemma a claimant faces with the question whether to timely appeal a Board decision, or risk
having his right to appeal vitiated for failure to timely appeal).
The other exception is implicitly raised by Roebuck, which, as noted ante at 16, involved a
unique set of circumstances such that the Court concluded that the Board decision denying a matter
was not final despite the Board's decision stating it was final and the fact the claimant had been
provided notice how and when to appeal. Although I concur that Roebuck can be distinguished from
our precedential cases where the Court had jurisdiction over final Board decisions for which notice
of appellate rights has been provided, it must be recognized that Roebuck is indeed an exception
thereto. Any characterization that today's opinion establishes a new concept of finality elevates the
recent single panel decision in Roebuck, rendered on exceptional circumstances, above the consistent
understanding of this Court's jurisdiction in the nonexceptional circumstances where the Board
renders a final decision on one theory supporting a claim for benefits and remands for further
adjudication that part of the claim that is based on another theory that could support an award of
benefits.
2. Assertions that Evidence on Direct Service Connection Was Not Fully Developed at the
Time of the 1998 Board Decision Are Speculative.
One of the concurring opinions suggests that the September 1998 Board decision that denied
Mr. Tyrues's direct service-connection claim for lung disability could have been based on evidence
that was not properly and fully developed; however, readers should note that this allegation is
unsupported by reference to any facts; it is pure speculation. Moreover, the very suggestion of
inadequate development reinforces the fact that Mr. Tyrues should have appealed the 1998 decision
in a timely manner if he was not satisfied with it, so that effective appellate review could be
conducted. Review of a decision rendered over 10 years ago certainly ignores the mandate from
Congress that an appeal of a final Board decision be taken within 120 days of that decision.
38 U.S.C. § 7266.
3. Our Jurisdiction Is Predicated on Final Board Decisions Adversely Affecting a Claimant.
Although the Court has tried to define a "claim" for all purposes, see Rice, 22 Vet.App. at
451, any such effort is fruitless. Our jurisdiction is over final Board decisions affecting benefits.
26
38 U.S.C. §§ 7252, 7266; see, e.g., Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000). Nothing
in statute or caselaw limits our jurisdiction to final decisions on claims, or otherwise defines the
context of our jurisdiction over final Board decisions on all aspects of a claim. Can it reasonably
be argued that the denial of benefits for a disability based on one theory is not a final Board decision
affecting benefits? A veteran might very well be entitled to benefits based on the theory denied by
the Board, and to require him to wait 10 or more years to appeal that decision is wholly contrary to
our statutory jurisdiction, which is the "exclusive jurisdiction to review decisions of the Board of
Veterans' Appeals" when a final decision is appealed by "a person adversely affected by such
decision" within 120 days of the mailing of the decision. 38 U.S.C. §§ 7252 and 7266.
Moreover, as we recently held in Clemons v. Shinseki, claimants seek benefits for disabilities
as they perceive them based upon particular symptoms, not based upon a particular medical term
causing the perceived disability. 23 Vet.App. 1, 4 (2009). The requirement to liberally construe a
claim, and the recognition that claimants generally are not competent to provide opinions as to
diagnoses that require medical training, compel the Secretary to view and develop a claim for
benefits based on the reported symptoms and not just a particular, unconfirmed "diagnosis," On the
other hand, the requirement to liberally construe a claim for benefits in no way constrains the
Secretary from processing the claim based on different theories or diagnoses. Indeed, the Federal
Circuit has held that a claim for benefits finally denied as to one medical cause, is to be treated
separately from a subsequent claim for benefits based on a different medical cause, even when the
disability as perceived by the veteran is the same, such as a hearing loss that is sensorineural as
opposed to conductive. Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008).
Thus, a "claim" seeking benefits – i.e., a claim for benefits for whatever a veteran suffers
from – is different from a "claim" denied – i.e., the denial of benefits based on one specific medical
diagnosis differs from a later submitted "claim" for benefits based on a different medical diagnosis.
Otherwise stated, what constitutes a "claim" differs depending on what stage in the administrative
process one is attempting to define a claim – at the stage when a "claim" is filed, or at the final stage
when a "claim" is denied. With regard to our jurisdiction, however, it should not be overlooked that
it is premised on a final Board decision affecting benefits, and not on what constitutes a claim at any
given time in the adjudication process below.
27
As succinctly stated in the Court's opinion, when the Board renders a final decision on a
matter affecting benefits, and a claimant is provided a copy of that decision and notice how and
when to appeal it, the failure to timely file an NOA precludes this Court from having jurisdiction
over that decision. This is what the law states, and it is the basic holding of the Court's decision
today.
HAGEL, Judge, concurring in the result, dissenting in part: I concur in the majority's
ultimate conclusion that we do not have jurisdiction to review the September 1998 Board decision.
However, I write separately because I believe that our lack of jurisdiction stems from entitlement
to service connection for a chronic lung disorder being a separate and distinct claim for VA
compensation from entitlement to service connection for Persian Gulf Syndrome under 38 U.S.C.
§ 1117. The majority chooses not to decide this issue and in doing so further confuses this Court's
caselaw with the interchangeable use of the terms "issue," "matter," and "claim" without a clear
definition of those terms.
Although the majority states that it is unnecessary to decide whether Mr. Tyrues has
presented one claim or two, its analysis stems from the proposition that Mr. Tyrues has presented
a single claim for benefits based on a lung condition. The majority regards Mr. Tyrues's joint pain,
stomach pain, and memory loss symptoms as only ancillary to the lung condition. Such analysis is
facilitated by the mostly interchangeable use of the terms "issue," "matter," and "claim" without
specifically stating to what each terms refers. This lack of precision will, in my view, result in fuzzy
decisions in the future, especially when used in an opinion by the full Court.
The majority's decision includes language such as, "a Board decision denying VA disability
compensation on one issue, while another issue is still under adjudication." and "the Board denies
benefits based on a particular issue with distinct criteria and remands for further adjudication another
issue of establishing entitlement to benefits" without explaining what an "issue" is–namely whether
it is a claim for benefits or theory of entitlement to benefits. Ante at 13 (emphasis added). The
majority later refers to a potential situation where "the Board decides one matter and remands
another matter," again without explaining the meaning of "matter." Id. at 14 (emphasis added). By
using the terms interchangeably, the majority is able to avoid using the more appropriate terms
"claim" and "theory," and, thus, is able to avoid deciding the central issue raised by Mr. Tyrues on
28
appeal and briefed by the parties–that is, whether the facts in this case define one claim or two and,
if two, the effect of this Court's decision in Roebuck.
"Claim" has been defined by VA in 38 C.F.R. § 3.1(p) (2009), as "a formal or informal
communication in writing requesting a determination of entitlement or evidencing a belief in
entitlement, to a benefit." Further, in Roebuck v. Nicholson, the Court adopted the definition of
"claim" applied by the Federal Circuit in Schroeder v. West, and determined that a claim is an
application for entitlement to a VA benefit based on a current disability. Roebuck v. Nicholson,
20 Vet.App. 307, 312-13 (2006); see Schroeder v. West, 212 F.3d 1265, 1269 (Fed. Cir. 2000). The
Roebuck Court also recognized, in line with the Court's holding in Bingham v. Principi, that
although there may be multiple theories or means of establishing entitlement to a benefit for a
disability, if the theories all pertain to the same benefit for the same disability, they constitute the
same claim. Id. at 313; see Bingham v. Principi, 18 Vet.App. 470, 474 (2004) aff'd sub nom.
Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005). The Court should therefore apply this
definition of "claim" to the facts in the instant appeal. Applying that definition to the facts in this
case, Mr. Tyrues has two separate claims for VA benefits. To fully explain my reasoning, it is
necessary to provide a more extensive recitation of the relevant facts than is provided by the
majority.
In March 1995, shortly after being hospitalized for pneumonia, Mr. Tyrues amended a prior
claim for VA benefits to include entitlement to benefits for a lung disability. In support of his claim
he submitted medical records that refer to both pneumonia and bronchitis. His claim for benefits
for a lung disorder was initially denied. Mr. Tyrues appealed that denial to the Board.
In December 1996, Mr. Tyrues appeared at a hearing before a Board member. At this
hearing, he discussed his lung condition, including coughing and congestion, which he stated was
incurred in service based on his exposure to dust, fumes, and kerosene. Mr. Tyrues stated that, since
returning from the Persian Gulf, he has been diagnosed with pneumonia three or more times as well
as a lung infection or a growth on his lung. After the Board member stated that he had no further
questions, Mr. Tyrues's representative asked Mr. Tyrues whether he had anything to add before
concluding the hearing. In response, Mr. Tyrues stated that he had been reading about symptoms
that were being experienced by other soldiers who had served in the Persian Gulf and that he had
29
noticed that he too was developing these symptoms, including soreness and aching in his joints. In
response to Mr. Tyrues's description, the Board member stated:
That's not really relevant now. I would advise you, there is what we call a Persian
Gulf syndrome, things, now I, I would, if I were you get a hold of Mr. Weatherly here
and you guys could work up a claim because that's an area right now which the law
is changing rather rapidly and there is a distinct possibility you can get service
connected for some of these things because, like I said, it, it is in the process right
now of developing and I would certainly file a claim for it.
R. at 147 (emphasis added.) The Board member further stated that Mr. Tyrues did not currently
have such a claim, but that he should file a claim based on the symptoms that he was describing.
The Board member again stated: "[T]he whole process starts with you filing a claim and identifying
what you feel are the symptoms related to this and [what] the Persian Gulf syndrome symptoms are,
there's a wide variety of them . . . ." Id. Six days later, in apparent response to the suggestion from
the Board member, Mr. Tyrues submitted a statement in support of claim, stating that he wanted to
amend his claim "to include aching joints, memory loss, and stomach condition caused from [his]
Persian Gulf service." R. at 159.
In March 1997, the Board remanded his claim for benefits for a lung disorder back to the
regional office, which sent Mr. Tyrues a letter, on March 19, 1997, notifying him that he could
submit additional evidence with respect to that claim. In April 1997, VA sent Mr. Tyrues a notice
letter regarding his newly filed "claim for disability benefits based on Persian Gulf War service."
R. at 163 (emphasis added). The letter requested that Mr. Tyrues submit medical and non-medical
evidence to support his claim. In response, Mr. Tyrues submitted lay statements from his wife, a
coworker, and a fellow soldier who served with him in the Persian Gulf and who, at that time,
worked with him at home. The letter from his coworker referred to Mr. Tyrues experiencing flu and
cold symptoms upon returning from service. Mr. Tyrues's fellow soldier and current coworker also
stated that after returning from duty, Mr. Tyrues missed work "because of flu, colds, complaints of
aching joints, and soreness in his body." R. at 172. He further stated that Mr. Tyrues could not
work as a result of the pain in his body. Mr. Tyrues's wife stated that her husband experienced
constant joint pain, numbness, inability to move after sleeping, flu-like symptoms, and a propensity
to experience colds.
30
An April 4, 1997, VA Compensation and Pension Examination worksheet mentions two
claims, one claim for benefits for a lung disorder being remanded from the Board and another claim
for benefits for aching joints, memory loss, and a stomach condition, but notes that both claims are
related to service in the Persian Gulf. In May 1997, Mr. Tyrues underwent a VA examination,
which appears to relate his lung condition to his service in the Persian Gulf. The examiner also
diagnosed him with "possible Gulf War Syndrome with shortness of breath, joint pain, [and]
memory loss." R. at 191. Following a request by VA for authorization to obtain records, VA
received records from Dr. Arnold, which stated that Mr. Tyrues experienced significant lower back
pain, manifested as "a dull aching pain with intermittent sharp component on movement." R. at 212.
Later records show Mr. Tyrues sought treatment for joint pain in his right shoulder, lumbar strain,
flu-like symptoms, morning stiffness in his joints, generalized joint pain, coughing, and a sore
throat. VA also received medical records from Dr. Mitchum, which also revealed that Mr. Tyrues
experienced chronic back pain, pneumonia, and bronchitis.
On April 20, 1998, the regional office issued a Supplemental Statement of the Case, stating
that it was continuing to deny entitlement to VA benefits for a lung disorder. On the same day, the
regional office issued a decision that addressed four issues: A denial of entitlement to service
connection for a lung condition (noted as a remanded issue) and denial of the three other conditions,
including joint pain, memory loss, and a stomach condition (noted to be new issues and all attributed
to an "undiagnosed illness"). R. at 241. Mr. Tyrues, referencing the April 1998 Supplemental
Statement of the Case, which denied only entitlement to VA benefits for a lung condition, appealed
to the Board. Indeed, the brief submitted by his representative to the Board on appeal clearly stated
that the "question at issue" on appeal was "entitlement to service connection for a lung disorder."
R. at 261. In this brief, Mr. Tyrues's representative referred only to Mr. Tyrues's claim for benefits
for a lung disorder and that claim's previous procedural history.
In September 1998, the Board denied service connection for a lung disorder. The Board,
referring to the April 1998 rating decision, also remanded the "issue of entitlement to service
connection [] for a chronic disorder manifested by shortness of breath, due to an undiagnosed illness,
claimed as secondary to Persian Gulf War service." R. at 266. Although the Board discussed some
of the same evidence, it referred to two claims, a claim for entitlement to service connection for a
lung disorder on a direct basis and a claim for entitlement to service connection for a chronic
31
disorder, due to an undiagnosed illness. With regard to the chronic disorder, the Board ordered VA
to provide Mr. Tyrues with a new medical examination, which was provided in December 1998.
In February 2000, the Board denied Mr. Tyrues's claim for benefits for "shortness of breath
as a chronic disability resulting from an undiagnosed illness." R. at 313. The decision was
subsequently remanded by the Court pursuant to the parties' joint motion for a remand for VA to
provide Mr. Tyrues with a new medical examination. In December 2001, Mr. Tyrues underwent
another VA examination, at which the examiner stated that Mr. Tyrues's shortness of breath due to
an undiagnosed illness is at least as likely as not due to the Gulf War service." R. at 350. That
examiner also diagnosed Mr. Tyrues with "mild chronic bronchitis." Id. In July 2002, the Board's
Case Development Unit found that these two diagnoses appeared to be inconsistent and ordered
another examination, requesting the examiner diagnose Mr. Tyrues with a particular disorder or
indicate that his symptoms were the result of an undiagnosed illness. In October 2002, a VA
examiner found that Mr. Tyrues did not have any respiratory problems at that time and that any
previous problems are related to allergies and not related to his Gulf War service. In April 2004,
the Board denied his claim for benefits for a respiratory/ lung disorder as a chronic disability
resulting from an undiagnosed illness.
These facts reveal that Mr. Tyrues was advised by a member of the Board, to file a claim
for benefits for Persian Gulf Syndrome. Although the majority’s description of this person as a
"hearing officer" is not incorrect, such a description does not convey the authority with which this
statement was made. See 38 C.F.R. § 3.103(c)(2)(2009). Certainly a Board member understands the
difference between additional symptoms of a disability for which benefits have already been claimed
and a claim for benefits based upon a separate disability. The Board member specifically advised
Mr. Tyrues to submit a "claim" to the agency of original jurisdiction. R. at 147. The use of such
terminology by the Board serves to illustrate the problems associated with the majority's undefined
use of "issue," "claim," and "matter." Further, from the time that Mr. Tyrues amended his claim in
1996 to include entitlement to VA benefits for aching joints, memory loss, and stomach condition
caused by his Persian Gulf service until the Board issued its September 1998 decision remanding
that claim, VA had considered, developed, and adjudicated his claims for benefits for a lung
condition and for a chronic disability resulting from service in the Persian Gulf separately. Although
the majority states that it need not decide the issue of whether Mr. Tyrues presented one claim or
32
two, it must consider the claims as one in order to proceed to its discussion of Harris and Roebuck,
the two issues the majority appears bound to reach. In so doing, the majority treats Mr. Tyrues as
having filed a single claim for a lung disorder based on two theories of entitlement to service
connection, a direct basis under 38 U.S.C. § 1110 and a presumptive basis under 38 U.S.C. § 1117.
However, in doing so, the majority fails to explain why Mr. Tyrues's claim for VA benefits for a
chronic disorder, characterized by a collection of symptoms described as aching joints, memory loss,
a stomach condition, and shortness of breath caused by an undiagnosed illness is part of a claim for
benefits for a single lung disorder.
As stated above, when Mr. Tyrues initially described his symptoms at the December 1996
Board hearing, the Board member informed him that he needed to file a new claim for benefits for
Persian Gulf syndrome, which he subsequently did. Upon receipt of his new claim, the regional
office developed this claim as separate and distinct from his claim for benefits for a lung condition.
The record contains a notice letter requesting that he submit evidence to support his newly filed
"claim for disability benefits based on Persian Gulf War service." R. at 163. Indeed, he submitted
lay statements from his wife, his coworker, and a fellow soldier and coworker, which indicated that
he experienced joint and overall body pain as a result of an undiagnosed illness. Medical reports
from Drs. Arnold and Mitchum confirm these symptoms. Although the September 1998 Board
decision referred only to shortness of breath, it still noted that Mr. Tyrues's claim was for service
connection for a chronic disorder due to an undiagnosed illness.
"A claim is an application for entitlement to a VA benefit based on a current disability."
Roebuck, 20 Vet.App. at 312-13; see Schroeder, 212 F.3d at 1269. In Roebuck, the Court held that
"although there may be multiple theories or means of establishing entitlement to a benefit for a
disability, if the theories all pertain to the same benefit for the same disability, they constitute the
same claim." 20 Vet.App. at 313. In this case, Mr. Tyrues has sought benefits for two separate
disabilities: A diagnosed lung disorder, described as both pneumonia and bronchitis, and an
undiagnosed chronic condition manifested by joint pain, body ache, memory loss, and stomach
conditions alleged to be the result of his service in the Persian Gulf. Compare Boggs v. Peake, 520
F.3d 1330, 1336 (rejecting this Court's holding that two claims based on separate and distinct
33
diagnosed injuries can be considered the same claim if they involve the same symptomatology),8
with Kelly v. Nicholson, 463 F.3d 1349, 1353 (Fed. Cir. 2006) (holding that multiple diagnoses for
a single disability "were not separate claims, [but were] merely two means of establishing the same
end–the service connection claim"). Here, Mr. Tyrues could establish entitlement to service
connection based on either of his disabilities.
The law clearly commands the determination that Mr. Tyrues has two separate claims.
Section 1117 of title 38 of the U.S. Code provides entitlement to compensation on a presumptive
basis to a Persian Gulf War veteran who complains of having an undiagnosed illness or illnesses that
are 10% or more disabling during the presumption period established by the Secretary. 38 U.S.C.
§ 1117(a)(1)(A) and (B). Pursuant to section 1117(d)(2), the Secretary has promulgated 38 C.F.R.
§ 3.317, which provides, in pertinent part:
(a)(1) Except as provided in paragraph (c) of this section, VA will pay compensation
in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf
veteran who exhibits objective indications of a qualifying chronic disability,
provided that such disability:
(I) Became manifest either during active military, naval or air service in the Southwest
Asia theater of operations during the Persian Gulf War, or to a degree of 10[%] or more
not later than December 31, 2006; and
(ii) By history, physical examination, and laboratory tests cannot be attributed
to any known clinical diagnosis.
....
(b) For the purposes of paragraph (a)(1) of this section, signs or symptoms which
may be manifestations of undiagnosed illness or medically unexplained chronic multi
symptom illness include, but are not limited to:
(1) Fatigue
(2) Signs or symptoms involving skin
(3) Headache
(4) Muscle pain
(5) Joint pain
(6) Neurologic signs or symptoms
(7) Neuropsychological signs or symptoms
8
See Clemons v. Shinseki, 23 Vet.App. 1 (2009) for this Court's application of Boggs v. Peake, 520 F.3d at
1336.
34
(8) Signs or symptoms involving the respiratory system(upper or lower)
(9) Sleep disturbances
(10) Gastrointestinal signs or symptoms
(11) Cardiovascular signs or symptoms
(12) Abnormal weight loss
(13) Menstrual disorders.
38 C.F.R. § 3.317 (2008) (emphases added); see also 38 U.S.C. § 1117(g).
As noted by the Secretary in his brief, 38 U.S.C. § 1117 provides a unique presumption of
service connection for undiagnosed illnesses incurred in, or manifested during a presumptive period
following, service in the Persian Gulf. By their very nature, these claims involve undiagnosed
illnesses. In this case, however, Mr. Tyrues's lung condition has been diagnosed as both pneumonia
and bronchitis. He filed his original claim for a lung condition shortly after he was hospitalized for
pneumonia. At the December 1998 Board hearing, Mr. Tyrues discussed his lung condition in terms
of previous diagnoses of pneumonia and a lung infection. The medical records submitted with his
claim reflect these diagnoses. On the contrary, at the December 1998 Board hearing, Mr. Tyrues
described symptoms including aching joints, memory loss, and stomach problems. The May 1997
medical examination specifically noted these symptoms and diagnosed him with possible Persian
Gulf Syndrome with shortness of breath, joint pain, and memory loss, which could be compensable
under section 1117.
Mr. Tyrues's private and VA medical records reveal that, at various times, he has sought
treatment for several of the symptoms noted in § 3.317, including muscle pain, joint pain, symptoms
involving the respiratory system, and gastrointestinal symptoms. These symptoms formed a basis
for entitlement to service connection under 38 U.S.C. § 1117 that is distinct from Mr. Tyrues's claim
for entitlement to benefits for a lung condition under 38 U.S.C. § 1110. In support of his argument
that he has submitted two theories of entitlement to service connection instead of two separate
claims, Mr. Tyrues cites Schroeder, 212 F.3d at 1270. However, in Schroeder, the veteran had a
single diagnosed disability, an eye condition, and sought service connection for that condition on
a direct basis and as a result of exposure to Agent Orange. Unlike Schroeder, which involved
separate theories for establishing a single claim, this case involves two separate factual bases for
establishing entitlement to service connection for two different disabilities. In this case, any claim
for service connection for a diagnosed lung disorder, whether bronchitis or pneumonia, falls outside
35
entitlement to service connection under section 1117. Indeed, under the statute and implementing
regulation, such disability "by history, physical examination, and laboratory tests cannot be
attributed to any known clinical diagnosis." 38 C.F.R. § 3.317(a)(1)(ii).
The facts in this case reveal that Mr. Tyrues filed two claims for VA benefits based on
separate disabilities. If there are two claims and not one, then this case is easily resolved. The claim
for VA benefits for a lung condition was resolved by the Board in its 1998 decision, from which
Mr. Tyrues sought no appeal. This claim has, therefore, been finally resolved. Consequently, I
agree with the majority that the Court does not have jurisdiction to review that claim now.
38 U.S.C. § 7266(a). However, I cannot agree with the majority's implied determination that in this
case Mr. Tyrues's conditions constitute a single claim for VA benefits.9 With respect to that matter,
I respectfully dissent.
LANCE, Judge, with whom SCHOELEN, Judge, joins, concurring in part and dissenting in
part: While I agree with the outcome on the theory that was addressed by the majority, I cannot
agree that we lack jurisdiction over the entire claim. The majority opinion effectively overrules our
decision in Roebuck v. Nicholson, 20 Vet.App. 307 (2006), by limiting the case to its facts. The
majority does so in the name of administrative efficiency. However, I cannot agree that
administrative efficiency trumps a veteran's interest in receiving the full amount of benefits that he
is entitled to by virtue of his service to a grateful nation.
"An epigram widely attributed to Abraham Lincoln is appropriate in this case: How many
legs does a dog have if you count his tail as a leg? Four. You can call a tail a leg if you want to, but
it doesn't make it a leg." Kuzma v. Principi, 16 Vet.App. 140, 145 (2002) (en banc per curiam order)
(Ivers, J. dissenting); see also Arteaga v. Mukasey, 511 F.3d 940, 946 (9th Cir. 2007) (using
Lincoln's wisdom to conclude that "calling a street gang a 'social group' as meant by our humane and
accommodating [asylum] law does not make it so"); First Liberty Inv. Group v. Nicholsberg,
145 F.3d 647, 652 (3d Cir. 1998) (applying the epigram to conclude that an employer could not
escape an arbitration clause by labeling an employee as an "independent contractor"). The majority
9
Because I would find that M r. Tyrues has two separate claims, I believe that the discussion in the majority's
opinion regarding whether theories of service connection may be treated separately, including its consideration of Harris,
Roebuck, and Joyce, all ante , is unnecessary and, even if it was properly included in the opinion, would be obiter
dictum. However, I note that the Federal Circuit's order remanding this case would have the Court consider Roebuck
and Joyce.
36
opinion holds that a Board decision is final because the Board says it is. I disagree. I believe that
a Board decision does not become final until it is ripe for judicial review, regardless of the Board's
desire to wash its hands of a particular theory before the claim has been fully developed and
adjudicated. See DiCarlo v. Nicholson, 20 Vet.App. 52, 57 (2006) (stating that finality is "a measure
of procedural maturity"); Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (adopting "as a matter of
policy the jurisdictional restrictions of the Article III case or controversy rubric"). The practical
effect of the majority's holding is that a claim can be finally denied on one theory before the
evidence is fully developed and VA is fully informed as to the nature of the veteran's current
condition and its etiology.
It is quite reasonable to expect that, after full development of the claim, a Board decision
denying a claim on one theory will be contradicted by new evidence developed on remand of a
different theory. For example, a Board decision could—as happened here—deny a claim on theory
A because the evidence is against it, but remand the claim for further development on theory B. If
the denial of theory A is a separate decision that must be appealed immediately, then an appellant
may be prejudiced if this partial denial is final. It is easy to imagine a scenario where the remand
as to theory B produces a new medical opinion that actually supports theory A instead because new
facts come to light, there is an advance in medical knowledge, or there is simply a disagreement of
opinion by a new expert reviewing the claim. However, if theory A has already been finally
denied—either because the Board decision was not appealed or because the Court affirmed that
decision based on the record as it existed at the time of the Board decision—then the appellant is
now in the position of being finally denied as to both theories even though the evidence supports
granting the claim as to a theory that was denied based upon an underdeveloped record. Even if the
appellant realizes that the new evidence is material as to the theory that was originally denied, the
effective date awarded upon reopening will be based upon the new claim rather than the original
claim—potentially costing the appellant years of benefits. While such a process is administratively
convenient, it is also deeply unfair.
There might be ways in which a claimant who is savvy or advised by counsel could avoid
this prejudice. Perhaps the appellant could appeal the final decision as to theory A and argue that
appellate review is premature until theory B is fully developed and decided because they are
inextricably intertwined. However, the majority opinion holds, in essence, that alternative theories
37
of entitlement are not presumed to be inextricably intertwined, see ante at 18, and the evidence
showing that the theories are intertwined may not be before the Court because it is not developed
until after the remand of theory B.
However, most claimants do not have attorneys at the Board level or when they file their
NOAs to Board decisions. The majority decision purports to save claimants from the burden of
determining whether a Board decision should be appealed by adopting a bright-line rule that Board
decisions that purport to be final must always be appealed. Ante at 18. However, this "benefit" to
claimants is actually a mirage because it assumes that unrepresented claimants will know that the
Court has adopted this bright-line rule. It is much more likely that a pro se appellant will (1) not
understand that a Board decision that remands a claim as to some theories is still final as to the
others; (2) accept the decision without knowledge of the evidence that will be developed on remand;
or (3) appeal the denied theory on the merits even though the full record for the claim has yet to be
developed. Under any framework, a premature NOA can never hurt a claimant. Only under the
majority decision is a claimant penalized for not filing an NOA each time an individual theory is
rejected.
The majority opinion also fails to reconcile its notion of theory-by-theory finality with the
plain language of 38 U.S.C. § 5108. Section 5108 permits a claimant to reopen "a claim which has
been disallowed" by submitting new and material evidence. What happens when a claimant obtains
evidence that is new and material to a theory that has been finally denied before the whole claim has
been denied? Would the appellant file a separate claim to reopen a claim that is still pending and
being adjudicated? Similarly, 38 U.S.C. § 5110 limits the effective date for an award of benefits to
the date of "the original claim" or "a claim reopened after final adjudication" to no earlier than the
"date of the receipt of the application therefor." What is the effective date if theory B never becomes
final before theory A is reopened and results in the grant of the claim? Section 5103(a)(1) of title
38 requires the Secretary to provide notice of "the evidence necessary to substantiate the claim"
whenever a person applies for benefits. If theory A is still being processed and a claimant wants to
reopen theory B, is any notice required given that no new claim is being filed? If notice is required,
does it actually apply to the whole claim, or just to the theories that were previously denied? See
Kent v. Nicholson, 20 Vet.App. 1 (2006) (section 5103(a) notice as to an application to reopen a
claim must be tailored to the basis of the prior, final denial).
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The Secretary's duty to assist has also been defined by Congress in terms of claims. See
38 U.S.C. § 5103A. Suppose a remand of theory B for a new medical opinion produces one that
"indicates" that theory A may have merit, but theory A has already been finally denied. Is 38 U.S.C.
§ 5103A(d) triggered? See McLendon v. Nicholson, 20 Vet.App. 79 (2006). On its face, the duty
applies to the claim, not to the theory. If section 5103A(d) revives the previously final theory A
without an application (or even any intent) to reopen, what would be the effective date and what date
would be relevant for determining what law was in effect at the time the claim was filed?
Although the majority opinion fails to address any of these issues, it puts the Court on course
to simply mark out every instance of the word "claim" in title 38 and pencil in "theory" in order to
make the statute functional. The alternative would be for the Court to pick and choose when
Congress meant "theory" when it actually wrote "claim." I find either solution wholly unacceptable.
See Tropf v. Nicholson, 20 Vet.App. 317, 321 n.1 (2006) ("Without standard word meanings and
rules of construction, neither Congress nor the Secretary can know how to write authorities in a way
that conveys their intent and no practitioner or—more importantly—veteran can rely on a statute or
regulation to mean what it appears to say."); THE FEDERALIST NO . 62 (James Madison) ("It will be
of little avail to the people that the laws are made by men of their own choice, if . . . no man who
knows what the law is today can guess what it will be tomorrow.").
The only realistic benefit to claimants cited by the majority is that claimants may receive
faster judicial review of the denied theories if claims may be denied and appealed on a piecemeal
basis. Ante at 15. However, premature judicial review is likely to harm the appellant because the
Court is prohibited from considering favorable evidence developed after the Board decision on
review and may affirm the denial without benefit of the new information. See Bonhomme
v. Nicholson, 21 Vet.App. 40, 43-45 (2007). More importantly, once the Court has gone down the
track of allowing some types of interlocutory appeals in the name of faster justice, it is not apparent
where the train will stop. If the Board rejects an argument concerning the duty to notify or the duty
to assist, but remands for a different type of development, why should an appellant wait years before
the Court gets involved? Conversely, the majority also fails to recognize that if the RO grants
benefits on the second theory on remand, then any review of the first Board decision denying the
same benefit is moot. The potential for the Court to waste time on moot appeals is part of the central
reason why finality should be based upon principles of ripeness rather than blind deference to the
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Board. Hence, the Court's decision effectively overrules Mokal by abandoning both ripeness and
mootness as limitations on our jurisdiction. See 1 Vet.App. at 15.
Rather than ripeness or mootness, the majority purports to manage our theory-by-theory
jurisdiction on the Board's choice to include "an 'order granting appropriate relief or denying relief.'"
Ante at 9 (quoting 38 U.S.C. § 7104(d)). However, this standard grants the Board power to
arbitrarily allow or deny claimants the ability to appeal theories by choosing whether to include such
an order. For example, a Board decision may include a discussion of why the evidence does not
support theory A, but remand for a new medical opinion addressing theory B. If the Board includes
an order line formally denying theory A, then it must be immediately appealed. However, if it does
not include such a line and remands the whole claim, then the decision is not appealable. By tying
our jurisdiction to a technicality controlled by the Board, we grant the Secretary a tool to manage
our jurisdiction as he sees fit. Cf. Ribaudo v. Nicholson, 20 Vet.App. 552 (2007) (en banc) (rejecting
the argument that the Secretary has inherent authority to stay cases pending an appeal of a Court
opinion to the Federal Circuit); Marsh v. West, 11 Vet.App. 468, 470 (1998) ("This Court has been
wary of action or inaction by the B[oard] that would have had the effect of depriving this Court of
jurisdiction to review a B[oard] decision over which the Court would have had jurisdiction but for
the B[oard]'s action or inaction."). Alternatively, the Court will get involved in the business of
determining whether a Board's discussion of a theory amounts to a formal denial regardless of the
technicality.
I would also note that the majority’s new concept of finality for Board decisions is
inconsistent with the nature of finality at the regional office level. It is well established that RO
decisions are appealed on a claim-by-claim basis by the appellant's filing a Notice of Disagreement
(NOD). So long as a timely NOD is filed, an appellant is free to raise any theory of entitlement to
the Board and the Board must consider all theories of entitlement raised by the record even if the
theories are not raised by the claimant. See Robinson v. Peake, 21 Vet.App. 545, 553 (2008).
Nonetheless, the majority concludes that a theory-by-theory concept of finality applies at the Board
level even though claim-by-claim finality applies at the RO level. Moreover, it is not apparent how
the majority opinion's concept of theory-by-theory finality can be reconciled with the Federal
Circuit's decision in Bingham v. Nicholson that "[u]nder [38 U.S.C. § 7104(b)], finality attaches once
40
a claim for benefits is disallowed, not when a particular theory is rejected." 421 F.3d1346, 1348-49
(Fed. Cir. 2005).
The majority opinion asserts that applying Roebuck as written "creates a new exception to
the rule of finality and ignores the fact that Roebuck explicitly was based on unique circumstances."
Ante at 11. Nothing could be further from the truth. I read Roebuck as an application of well
established, general principles of finality for appellate review. It has been more than 40 years since
the Supreme Court explained
The long-established rule against piecemeal appeals in federal cases and the
overriding policy considerations upon which that rule is founded have been
repeatedly emphasized by this Court. . . . [T]he rule as to finality "requires that the
judgment to be appealable should be final not only as to all the parties, but as to the
whole subject-matter and as to all the causes of action involved."
Andrews v. United States, 373 U.S. 334, 340 (1963) (quoting Collins v. Miller, 252 U.S. 364, 370
(1920)) (citations omitted). This concept has been widely embraced by the federal appellate courts.
See, e.g., Garner v. U.S. West Disability Plan, 506 F.3d 957, 960-61 (10th Cir. 2007) (holding that
a district court's characterization of its order as "final" is not binding and that "courts do not
ordinarily treat the burden of having to participate in [additional] litigation as one that justifies
appeal from a nonfinal order"); Dieser v. Continental Cas. Co., 440 F.3d 920, 923 (8th Cir. 2006)
("A final decision . . . ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment." (internal quotation omitted)); Nichols v. Cadle Co., 101 F.3d 1448, 1448-49
n.1 (1st Cir. 1996) (noting that certification of a pre-mature appeal "by a well-intentioned district
judge can create a minefield for litigants and appellate courts alike" and holding that "a judgment
is final (and, thus, appealable . . .) only if it conclusively determines all claims of all parties to the
action"). Hence, I do not advocate for the creation of any type of "finality claim," but only for the
application of the general rule defining when a claim is final. Cf. DiCarlo, 20 Vet.App. at 57
("Finality is . . . a measure of procedural maturity. It distinguishes processes that have been
completed from those that have not.").
Of course, if Congress desired to give this Court some interlocutory review power, it could
certainly do so. Such authority might be narrowly tailored to rulings of law that would be
appropriate for such review. See 38 U.S.C. § 7292(b)(1) (permitting interlocutory appeals to the
Federal Circuit where "the ultimate termination of the case may be materially advanced by the
41
immediate consideration of [the] question"). If such a change were made, then the Court might be
authorized to review issues peculiarly suited to interlocutory review without jeopardizing the
claimant's effective date by torturing the definition of "a final Board decision" on a claim.
Accordingly, I see neither the statutory authority for the Court's ruling nor the benefit to veterans
created by encouraging piecemeal litigation. Cf. Matthews v. Nicholson, 19 Vet.App. 202, 206
(2005) (per curiam order) ("The Court cautions counsel against engaging in piecemeal litigation.");
Snyder v. Principi, 16 Vet.App. 62, 69 n.3 (2002) (en banc per curiam order) (Steinberg, J.,
concurring) ("The Secretary should need no reminder of the Court's longstanding policy to
discourage piecemeal litigation."); Burton v. Principi, 15 Vet.App. 276, 277 (2001) (per curiam
order) ("We should not encourage the kind of piecemeal litigation in which the appellant here has
engaged.").
Despite my misgivings, I would be constrained to agree with the majority if its opinion of
the controlling caselaw cited compelled the outcome reached. Fortunately, it does not. Notably, the
majority cites both Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000), and Joyce v. Nicholson, 443
F.3d 845 (Fed. Cir. 2006), and then proceeds to ignore the plain language it quotes from those
opinions. As quoted by the majority, Maggitt defines the finality of a Board decision in terms of
"'the benefit sought by the veteran.'" Ante at 9 (quoting 202 F.3d at 1376). Yet, inexplicably, the
majority does not further address or apply Maggitt. Instead of applying this clear language, the
majority relies upon language from the Federal Circuit's decision in Elkins v. Gober, 229 F.3d 1369(Fed. Cir. 2000), while attempting to avoid acknowledging that it ruled on the finality of different
claims, not different theories. While there is much Federal Circuit caselaw noting that judicial
review of one claim may need to wait until agency adjudication of another claim is complete, it does
not logically follow that individual theories of entitlement within one claim may be reviewed
piecemeal.
The majority also relies on an overly broad reading of the Federal Circuit's decisions in
Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d
1030, 1032 (Fed. Cir. 1997). They are cited for the proposition that the Federal Circuit has blessed
the concept of exercising jurisdiction over any issue where the Board purports to have rendered a
final decision. Nothing could be further from the truth. The issue in both of those cases was
whether the downstream elements of rating and effective date must be disputed through a new
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Notice of Disagreement even though one had previously been filed disputing a denial of service
connection. See Barrera, 122 F.3d at 1031; Grantham, 114 F.3d at 1158. The actual holding of
Grantham—as relied upon in Barrera—was that the appeal of "the logically up-stream element of
service connectedness" was independent of "the logically down-stream element of compensation
level." Grantham, 114 F.3d at 1158-59. In other words, a dispute over the service-connection
element of a disability compensation claim is jurisdictionally distinct from any dispute over a
disability rating and effective date that is later awarded. This makes perfect sense. There is no
reason to assume that an appellant who obtains a remand after initially losing on the service-
connection element will necessarily be disappointed in the disability rating or effective date after
prevailing on the service-connection element of a disability compensation claim on remand.
Accordingly, it makes sense to require such an appellant to initiate a new appeal to express
disagreement with the logically down-stream issues. Nothing in Gratham's discussion of "logically
down-stream elements" supports the proposition that alternative theories for proving the same
element may be appealed independently of each other.
I believe the ultimate flaw in the majority's use of Federal Circuit caselaw is that it traces
back to precedent outside the claimant-friendly realm of veterans law. As the majority notes, Elkins
relies upon Dewey Electronics Corp. v. United States, 803 F.2d 650 (Fed. Cir. 1986). Not only did
Dewey Electronics Corp. involve separate claims, as clearly stated in the opinion, it involved a
sophisticated corporation suing the Federal Government for a contract violation. Id. at 651-53. In
a contract suit—as with most cases in American law—the plaintiff is responsible for gathering and
presenting all the evidence to support his claim. If the plaintiff fails to do so, then he has no one to
blame but himself if appellate review of the agency contracting decision is reviewed based upon an
inadequate record. Veteran benefits claims are an exception to this general rule. In this area, VA
owes substantial duties to assist the claimant in the development of the claim. Therefore, it is
inappropriate to presume that errors that clearly prejudice the development of evidence as to one
theory of entitlement did not prejudice any other theory that may support an award of benefits.
Hence, the majority opinion's analysis importing a concept of finality suited to sophisticated
claimants before other agencies is fundamentally flawed. In addition, as the Federal Circuit
observed in Dewey Electronics Corp., "the agency's characterization of a decision is not
determinative of the finality issue and the relevant statutes outlining the required administrative
43
procedures must be examined." Id. at 654. In other words, even the caselaw relied upon by Elkins
recognized that courts may reject an agency's attempt to point to a tail and call it a leg. See also
Fagre v. Peake, 22 Vet.App. 188, 191 (2008) (per curiam order) (rejecting the Secretary's
characterization of a single Board decision as multiple separate Board decisions issued together).
In summary, I do not think that administrative convenience can justify the outcome reached
here or the concomitant confusion and delays that will be generated as a result. Rather, because the
majority opinion ignores the plain language of title 38 and controlling Federal Circuit precedent,
overrules our panel decision in Roebuck, and will prejudice veterans who will receive final Board
decisions denying benefits based upon records that are admittedly underdeveloped, I must
respectfully dissent.
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