USAVC 02-0764 - STEINBERG, Judge: Veteran Luther Williams, Jr. (the appellant), pro se, seeks review of a May 28, 2002, Board of Veterans' Appeals (Board or BVA) decision that (1) denied Department of Veterans Affairs (VA) service connection for a dental disability and (2) determined that he had failed to file a timely Substantive Appeal
both as to a June 6, 1979, VA regional office (RO) decision and as to an October 23, 1979, VARO decision. Record ( R.) at 1-17. The appellant filed an informal brief, and the Secretary filed a brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. 7252(a) and 7266(a). Single-judge disposition is appropriate here because the case is one whose outcome is controlled by the Court's precedents and is "not reasonably debatable". Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court will affirm in part and reverse in part the Board decision and will remand certain matters for further development and readjudication.
USAVC 02-0069 - this action may not be cited as precedent.
FARLEY, Judge: On appeal to this Court is a January 11, 2002, decision of the Board of Veterans' Appeals (BVA or Board) that, inter alia, determined that (1) an August 26, 1960, regional office (RO) decision severing service connection for nephritis was not the product of clear and unmistakable error (CUE), and (2) the August 1960 RO decision was final. Both parties filed briefs, and the appellant filed a reply brief. Thereafter, the appellant filed a motion to expedite the proceedings based on his advanced age and failing health. Pursuant to Rule 47 of the Court's Rules of Practice and Procedure, the Court may order the expediting of a matter with respect to procedural steps in the proceedings before it, such as the time allotted for briefing. In this case, the briefing had been completed when the motion was filed. In any event, the Court denies the motion to expedite as moot.
On appeal, the appellant does not challenge the Board's determination that the August 1960 RO decision was not the product of CUE. Accordingly, the Court deems that issue abandoned. Ford v. Gober, 10 Vet.App. 531, 535 ( 1997); Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993) (holding a claim abandoned where an appellant did not include the claim in his arguments and requests for relief). This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. 7252(a). Single- judge disposition is appropriate when, as here, the issue is of relative simplicity and the outcome is
not reasonably debatable. See Frankel v. Derwinski, 1 Vet. App. 23, 25- 26 (1990). For the reasons that follow, the Court will reverse the Board's decision with respect to the finality of the August 1960 RO decision and will vacate the January 11, 2002, Board decision and remand the matter for further adjudication consistent with this decision.
Masors v. Derwinski
(Submitted February 20, 1991/Decided February 7, 1992)
UNITED STATES COURT OF VETERANS APPEALSNo. 90-540
Whether evidence submitted to reopen previously disallowed claim is "New and Material Evidence " is question of law which Court of Veterans Appeals reviews de novo. 38 U.S.C.A. §§ 7104(b), 7261(a)(1).
Gilbert v. Derwinski
Argued July 25, 1990 Decided October 12, 1990)
UNITED STATES COURT OF VETERANS APPEALSNo. 89-53
In practical terms, under "clearly erroneous" rule, Court of Veterans Appeals is not permitted to substitute its judgment for that of the Board of Veterans' Appeals on issues of material fact; if there is plausible basis in record for factual determinations of Board, even if Court might not have reached same factual determinations, it cannot overturn them.
Holliday v. Principi
UNITED STATES COURT OF VETERANS APPEALSNo. 99-1788
The Court of Appeals for Veterans Claims may not determine in the first instance the applicability of the Veterans Claims Assistance Act (VCAA) to the specific claims of a particular appellant. 38 U.S.C.A. § 5107.
Dudnick v. Brown
UNITED STATES COURT OF VETERANS APPEALS No. 96-327
Only Board of Veterans' Appeals (BVA), not Court of Veterans Appeals, could consider whether amendments to portion of rating schedule pertaining to mental disorders, which went into effect after veteran filed his appeal, were more favorable to veteran; amendments had to be applied to extent they were more favorable. 38 C.F.R. §§ 4.13, 4.16; 38 C.F.R. § 4.125-4.132 (1996).
Grivois v. Brown
Court of Veterans Appeals review jurisdictional issue as to whether veteran's claims are well-grounded de novo.. 38 U.S.C.A. § 5107(a).
Where findings of material fact by Board of Veterans' Appeals (BVA) are properly supported and reasoned, and Board concludes that fair preponderance of evidence weighs against claim of veteran, it would not be error for Board to deny veteran benefit of doubt; such denial would not be subject to reversal under arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law standard because it was premised upon rational basis and supported by appropriate and relevant factors which were properly articulated. 38 U.S.C.A. § 4061(a)(4).
Lovelace v. Derwinski
Conclusions of law by the Board of Veterans' Appeals (BVA) are entitled to no judicial deference by Court of Veterans Appeals; however, findings of fact made by Board are entitled to judicial deference and are to be set aside only if clearly erroneous. 38 U.S.C.A. § 4061.
Colvin v. Derwinski
Where Board of Veterans' Appeals (BVA) declined to accept expert opinions that veteran's multiple sclerosis was service connected, it was necessary for Board to state its reasons for doing so and to point to medical basis other than Board's own unsubstantiated opinion which supported decision.
Robinette v. Brown
Question of whether claim is well grounded is question of law subject to de novo. adjudication by Court of Veterans Appeals. 38 U.S.C.A. § 5107(a).
Russell v. Principi
The Court of Veterans Appeals review of a Board of Veterans' Appeals (BVA) decision that has considered possible "clear and unmistakable error" in previous adjudications over which the court does not have jurisdiction, is necessarily limited to determining whether the BVA decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"; the issue must have been adjudicated below. 38 U.S.C.A. §§ 7104(d)(1), 7261(a)(3)(A); Pensions, Bonuses, and Veterans' Relief Regulations, § 3.105(a), 38 U.S.C.A.App.
Lovelace v. Derwinski
Determination by Board of Veterans' Appeals (BVA) of veteran's degree of impairment was one of fact entitled to judicial deference; Board's task was to sift through evidence, analyze and weigh it, and apply it to legal principles to effect that severely impaired veterans are entitled to 70% disability while those considerably impaired are entitled to 50%.
Grottveit v. Brown
Court of Veterans Appeals' determination of whether veteran's claim is well- grounded is a matter of law. 38 U.S.C.A. § 5107(a).
Board of Veterans' Appeals (BVA) decision as to the effective date when a veteran's symptoms became ascertainable did not provide adequate reasons or bases for the implicit rejection of potential dates posed by the evidence of record, thus requiring remand to the Board; medical evidence created the possibility of several different dates of ascertainability. 38 U.S.C.A. § 7104(d)(1).
Eddy v. Brown
On appeal of Board of Veterans' Appeals' (BVA) determination that there was no clear and unmistakable error (CUE) in prior final regional office (RO) decision, Court of Veterans Appeals' review is limited to determining whether BVA's conclusion is arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law and whether it is supported by adequate statement of reasons or bases. 38 U.S.C.A. §§ 7104(d)(1), 7261(a)(3)(A).
Hatlestad v. Derwinski
In order to enable claimant to understand decision and reasons behind it, as well as to assist in judicial review, Board of Veterans' Appeals (BVA) is required by statute to include in its decisions written statement of its findings and conclusions and reasons or bases for such findings and conclusions. 38 U.S.C.A. § 4004(d)(1).
Butts v. Brown
Court of Veterans Appeals may set aside Board of Veterans' Appeals' selection of diagnostic code for rating decision only if selection in particular case is arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law; selection involves application of law to facts rather than clear question of law or review of factual determination. 38 U.S.C.A. § 7261(a)(3)(A).
Hensley v. West
Where Board of Veterans Appeals (BVA) erred in its application of regulatory presumption that certain disorders are service-connected when the veteran was exposed to mustard gas in service, Court of Appeals for Veterans Claims should not have reviewed de novo. BVA's determination that veteran's claim for service connection of his heart disease was not well grounded, or engaged in its own fact finding, but was required to remand case to BVA for further development and application of correct law; since ground given by BVA for its decision led it to erroneous conclusion and consequently to insufficient factual development of the record, its decision could not be affirmed. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.316(a)
Scott v. Brown
In determining whether finding of fact by Board of Veterans' Appeals (BVA) is clearly erroneous, court is not permitted to substitute its judgment for that of BVA on issues of material fact; if there is plausible basis in record for BVA's factual determinations, court cannot overturn them. 38 U.S.C.A. § 7261(a)(4).
Hanson v. Brown
Board of Veterans' Appeals' (BVA) determination of proper effective date is a finding of fact, and findings of fact are reviewed by Court of Veterans Appeals under a clearly erroneous standard.
Bailey v. West
Ability of Court of Veterans Appeals to equitably toll a particular statutory time limit and thereby exercise jurisdiction over a late-filed notice of appeal was question of statutory interpretation which could be reviewed by Court of Appeals for the Federal Circuit. 38 U.S.C.A. §§ 7266(a), 7292(c, d).
Frankel v. Derwinski
Standard of review to be employed by the Court of Veterans Appeals when reviewing decisions of the Board of Veterans' Appeals (BVA) is determined by whether issues presented on appeal were questions of law or fact; if, upon consideration of record, Court cannot say factual findings of Board were clearly erroneous, or that there is error of law, Court is obligated to affirm Board's decision, with due regard given to rule of prejudicial error. 38 U.S.C.A. § 4061(a), (a)(4), (b).
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Swann v. Brown
Finding concerning service connection or no service connection is finding of fact which Court of Veterans Appeals reviews only to determine whether it is clearly erroneous.
Smallwood v. Brown
Determination of whether veteran is entitled to increase in schedular disability rating is question of fact subject to clearly erroneous standard of review; under this standard, Court of Veterans Appeals can overturn Board of Veterans' Appeals (BVA) decision only when there is no plausible basis in record for decision. 38 U.S.C.A. § 7261(a)(4).
Vda de Landicho v. Brown
In appeals of Board of Veterans' Appeals (BVA) decisions, Court of Veterans Appeals reviews fact determinations made by BVA and does not engage in de novo. fact-finding. 38 U.S.C.A. § 7261(a)(4), (c).
Stegman v. Derwinski
Determination regarding when and how disorder was incurred or aggravated is a finding of fact subject to review under clearly erroneous standard; Court of Veterans Appeals may not reject conclusion of Board of Veterans' Appeals (BVA) if it is supported by plausible basis in record.
Butts v. Brown
Court of Veterans Appeals reviews Board of Veterans' Appeals' findings of fact regarding new claims under clearly erroneous standard of review. 38 U.S.C.A. § 7261(a)(4).
Ohland v. Derwinski
In order to enable claimant to understand Board of Veterans' Appeals (BVA) decision and reasons behind it, as well as to assist in judicial review, Board is required by statute to include in its decisions written statement of Board's findings and conclusions and reasons or bases for those findings and conclusions. 38 U.S.C.A. § 4004(d)(1).
Hodge v. West
In general, the Court of Veterans Appeals defers to a regulatory construction of a statute that is adopted by the Secretary of Veterans Affairs.
Elkins v. West
New-and-material-evidence determinations will generally be reviewed under a deferential "clearly erroneous" standard; however, circumstances of an individual case, may call from time to time for the application of a de novo. or "arbitrary and capricious" standard of review. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
Green v. Brown
Even if Board of Veterans' Appeals (BVA) might have erred in requiring new and material evidence to support surviving spouse's claim for dependency and indemnity compensation (DIC) benefits, error was not prejudicial; in no event could she have used 1975 enactment to arrive at effective date of 1973, as required for DIC award based on veteran's continuous total disability rating for 10 years immediately preceding his death. 38 U.S.C.A. § 7261(b).
Damrel v. Brown
Board of Veterans' Appeals (BVA) failure to address claim that 1983 regional office decision denying total disability based on unemployability was inconsistent with evidence that was before regional office at time was harmless error, as applicant for dependency and indemnity compensation (DIC) benefits would not be entitled to benefits even if clear and unmistakable error was present because veteran would not have been rated totally disabled for ten or more years prior to his death, but only for five years. 38 U.S.C.A. §§ 1318, 7261(b).
Carbino v. Gober
Determination of whether service connection claim is well grounded is conclusion of law subject to de novo. review by Court of Veterans Appeals. 38 U.S.C.A. § 7261(a)(1).
Horowitz v. Brown
Court of Veterans Appeals reviews findings of Board of Veterans' Appeals (BVA) under "clearly erroneous" standard of review. 38 U.S.C.A. § 7261(a)(4).
See publication Words and Phrases for other judicial constructions and definitions.
Harrison v. Principi
In determining whether finding is clearly erroneous, Court of Veterans Appeals cannot substitute its judgment for that of Board of Veterans' Appeals (BVA) on issues of material fact, and cannot overturn factual determinations if there is plausible basis for them in the record. 38 U.S.C.A. § 7261(a)(4).
Smith v. Derwinski
Decision by Board of Veterans' Appeals (BVA) failed to contain statement of reasons or bases to support its assertion that evidence received since initial rating decision did not serve to alter factual basis in earlier decision and thus remand was required to enable Board to clarify whether it found that there was New relating to claim that veteran's spondylolisthesis was service connected, and if it did, to enable Board to properly consider all evidence, both old and new.
McGinnis v. Brown
Whether evidence submitted to reopen previously disallowed claim is new and material is question of law which Court of Veterans Appeals reviews de novo.. 38 U.S.C.A. § 5108.
Thomas v. Brown
Consolidated appeals on issue of whether Secretary of Veterans Affairs was required to allow cases to proceed at administrative level by issuing a statement of the case (SOC) were moot, where appellants had both received the SOCs which Department of Veterans Affairs regional offices (RO) had previously refused to issue. 38 U.S.C.A. § 7104.
Stewart v. Brown
Determination of effective date for disability compensation is finding of fact which Court of Veterans Appeals reviews under clearly erroneous standard of review. 38 U.S.C.A. § 7261(a)(4).
Hanson v. Brown
Board of Veterans' Appeals' (BVA) determination of proper effective date is a finding of fact, and findings of fact are reviewed by Court of Veterans Appeals under a clearly erroneous standard.
Bailey v. West
Ability of Court of Veterans Appeals to equitably toll a particular statutory time limit and thereby exercise jurisdiction over a late-filed notice of appeal was question of statutory interpretation which could be reviewed by Court of Appeals for the Federal Circuit. 38 U.S.C.A. §§ 7266(a), 7292(c, d).
Frankel v. Derwinski
Standard of review to be employed by the Court of Veterans Appeals when reviewing decisions of the Board of Veterans' Appeals (BVA) is determined by whether issues presented on appeal were questions of law or fact; if, upon consideration of record, Court cannot say factual findings of Board were clearly erroneous, or that there is error of law, Court is obligated to affirm Board's decision, with due regard given to rule of prejudicial error. 38 U.S.C.A. § 4061(a), (a)(4), (b).
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Swann v. Brown
Finding concerning service connection or no service connection is finding of fact which Court of Veterans Appeals reviews only to determine whether it is clearly erroneous.
Smallwood v. Brown
Determination of whether veteran is entitled to increase in schedular disability rating is question of fact subject to clearly erroneous standard of review; under this standard, Court of Veterans Appeals can overturn Board of Veterans' Appeals (BVA) decision only when there is no plausible basis in record for decision. 38 U.S.C.A. § 7261(a)(4).
Vda de Landicho v. Brown
In appeals of Board of Veterans' Appeals (BVA) decisions, Court of Veterans Appeals reviews fact determinations made by BVA and does not engage in de novo. fact-finding. 38 U.S.C.A. § 7261(a)(4), (c).
Stegman v. Derwinski
Determination regarding when and how disorder was incurred or aggravated is a finding of fact subject to review under clearly erroneous standard; Court of Veterans Appeals may not reject conclusion of Board of Veterans' Appeals (BVA) if it is supported by plausible basis in record.
Butts v. Brown
Court of Veterans Appeals reviews Board of Veterans' Appeals' findings of fact regarding new claims under clearly erroneous standard of review. 38 U.S.C.A. § 7261(a)(4).
Ohland v. Derwinski
In order to enable claimant to understand Board of Veterans' Appeals (BVA) decision and reasons behind it, as well as to assist in judicial review, Board is required by statute to include in its decisions written statement of Board's findings and conclusions and reasons or bases for those findings and conclusions. 38 U.S.C.A. § 4004(d)(1).
Hodge v. West
In general, the Court of Veterans Appeals defers to a regulatory construction of a statute that is adopted by the Secretary of Veterans Affairs.
Elkins v. West
New-and-material-evidence determinations will generally be reviewed under a deferential "clearly erroneous" standard; however, circumstances of an individual case, may call from time to time for the application of a de novo. or "arbitrary and capricious" standard of review. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
Green v. Brown
Even if Board of Veterans' Appeals (BVA) might have erred in requiring new and material evidence to support surviving spouse's claim for dependency and indemnity compensation (DIC) benefits, error was not prejudicial; in no event could she have used 1975 enactment to arrive at effective date of 1973, as required for DIC award based on veteran's continuous total disability rating for 10 years immediately preceding his death. 38 U.S.C.A. § 7261(b).
Damrel v. Brown
Board of Veterans' Appeals (BVA) failure to address claim that 1983 regional office decision denying total disability based on unemployability was inconsistent with evidence that was before regional office at time was harmless error, as applicant for dependency and indemnity compensation (DIC) benefits would not be entitled to benefits even if clear and unmistakable error was present because veteran would not have been rated totally disabled for ten or more years prior to his death, but only for five years. 38 U.S.C.A. §§ 1318, 7261(b).
Carbino v. Gober
Determination of whether service connection claim is well grounded is conclusion of law subject to de novo. review by Court of Veterans Appeals. 38 U.S.C.A. § 7261(a)(1).
Horowitz v. Brown
Court of Veterans Appeals reviews findings of Board of Veterans' Appeals (BVA) under "clearly erroneous" standard of review. 38 U.S.C.A. § 7261(a)(4).
See publication Words and Phrases for other judicial constructions and definitions.
Harrison v. Principi
In determining whether finding is clearly erroneous, Court of Veterans Appeals cannot substitute its judgment for that of Board of Veterans' Appeals (BVA) on issues of material fact, and cannot overturn factual determinations if there is plausible basis for them in the record. 38 U.S.C.A. § 7261(a)(4).
Smith v. Derwinski
Decision by Board of Veterans' Appeals (BVA) failed to contain statement of reasons or bases to support its assertion that evidence received since initial rating decision did not serve to alter factual basis in earlier decision and thus remand was required to enable Board to clarify whether it found that there was New relating to claim that veteran's spondylolisthesis was service connected, and if it did, to enable Board to properly consider all evidence, both old and new.
McGinnis v. Brown
Whether evidence submitted to reopen previously disallowed claim is new and material is question of law which Court of Veterans Appeals reviews de novo.. 38 U.S.C.A. § 5108.
Thomas v. Brown
Consolidated appeals on issue of whether Secretary of Veterans Affairs was required to allow cases to proceed at administrative level by issuing a statement of the case (SOC) were moot, where appellants had both received the SOCs which Department of Veterans Affairs regional offices (RO) had previously refused to issue. 38 U.S.C.A. § 7104.
Stewart v. Brown
Determination of effective date for disability compensation is finding of fact which Court of Veterans Appeals reviews under clearly erroneous standard of review. 38 U.S.C.A. § 7261(a)(4).
