Appeal from the United States Court of Appeals for Veterans Claims in 06-0020, Judge Alan G. Lance, Sr.
The opinion of the court was delivered by: Moore, Circuit Judge.
Before GAJARSA, DYK, and MOORE, Circuit Judges.
Eugene Charles appeals the decision of the Court of Appeals for Veterans Claims (Veterans Court) affirming the Board of Veterans' Appeals (Board) decision denying Mr. Charles an earlier effective date for service-connected disability benefits. For the reasons discussed below, we vacate and remand.
Mr. Charles served on active duty in the United States Navy from August 7, 1972 to August 30, 1974. On September 10, 1980, he filed a claim for service-connected benefits for manic depression (1980 Claim). On October 28, 1980, the Department of Veterans Affairs (VA) regional office (RO) issued a rating decision denying his claim (1980 Rating Decision). Mr. Charles submitted additional medical evidence, in particular a VA medical certificate dated September 1981 diagnosing him with a paranoid personality disorder. VA did not issue a Supplemental Statement of the Case nor is there any assertion that VA considered this supplemental evidence.
On March 1, 1982, Mr. Charles filed a second claim for benefits for a nerve condition (1982 Claim). RO sent Mr. Charles a letter stating that "[s]ervice connection for nervous condition was previously denied" and informing him that in order to reopen his claim, he "would have to submit evidence not previously considered showing that this condition was incurred in or aggravated by active duty" (1982 Letter).
Thereafter, Mr. Charles submitted additional information to RO, including a third claim*fn1 and additional medical evidence. On February 5, 1991, Mr. Charles filed a fourth claim (1991 Claim), in which he stated he was filing for service-connected disabilities for a "blood disease and nervous condition" and that a doctor at a VA medical center said he should file this claim.
The record is unclear as to exactly what happened next. In 1995, the Board noted that Mr. Charles' claim file had been lost and rebuilt, and it was "not possible to tell whether [Mr. Charles] was properly notified of the denial" or "what records might have been utilized in this purported denial." The Board further noted that Mr. Charles appeared to have been awarded benefits by the Social Security Administration (SSA). The Board remanded Mr. Charles' claim to RO for further development and its remand order stated that RO should request copies of Mr. Charles' medical records from the SSA. RO did not obtain Mr. Charles' SSA medical records. Charles v. Peake, No. 06-0200, 2008 U.S. App. Vet. Claims LEXIS 626, *26-27 (May 14, 2008). On appeal from RO, in 1997, the Board reviewed the evidence in Mr. Charles' file and determined that he had not submitted any new and material evidence. The Board therefore denied his request to reopen his claim for a psychiatric disorder.
Mr. Charles appealed to the Veterans Court. In 1998, we invalidated the test for new and material evidence that had been applied by the Board in favor of the standard set forth by VA in 38 C.F.R. § 3.156(a). Hodge v. West, 155 F.3d 1356, 1363-64 (Fed. Cir. 1998). Thus, upon a joint motion filed by the parties, the Veterans Court vacated the Board's 1997 decision and remanded for a new determination of whether Mr. Charles had submitted new and material evidence. On remand, the Board found that "[c]ompetent evidence linking a current psychiatric disability to an acquired in-service psychiatric disability has been presented." On July 21, 2000, the Board remanded to RO with detailed instructions for further development of Mr. Charles' claim, reminding RO that it should afford the claim expeditious treatment. On February 21, 2003, RO issued a rating decision granting Mr. Charles a 50% disability rating for his service-connected psychiatric disorder dating back to February 5, 1991 (the date of Mr. Charles' "Statement in Support of a Claim").
Mr. Charles timely submitted a Notice of Disagreement regarding the 2003 Rating Decision, challenging both the rating and the effective date. RO sent Mr. Charles a Statement of the Case dated June 21, 2004, which indicated that he had been granted a 100% disability rating dating back to February 5, 1991. RO denied Mr. Charles' request for an earlier effective date. RO explained that his benefits could not date back any earlier because his original claim (the 1980 Claim) was final by virtue of the 1980 Rating Decision denying compensation, and his request to reopen that claim was not received until February 5, 1991.
Mr. Charles appealed to the Board. In 2005, the Board denied his request for an effective date earlier than 1991. The Board explained that the benefits could not extend back before the date of a new claim or a claim to reopen. It then determined that Mr. Charles did not have a pending claim or a claim to reopen dated prior to February 5, 1991. With respect to his 1980 Claim, the Board determined that the 1980 Rating Decision became final because Mr. Charles did not appeal. As to the 1982 Claim, the Board interpreted it as a request to reopen his 1980 Claim and concluded that Mr. Charles abandoned the 1982 Claim when he failed to reply to RO's 1982 Letter requesting new evidence. Thus, the Board found that the preponderance of the evidence weighed against Mr. Charles' claim for an effective date earlier than February 5, 1991.
Mr. Charles appealed to the Veterans Court, which affirmed the Board's decision.Charles, 2008 U.S. App. Vet. Claims LEXIS 626. Relevant to this appeal, the Veterans Court agreed with the Board that Mr. Charles abandoned his 1982 Claim by not supplying medical evidence within one year of the date it was requested. Id. at *18-21. The Veterans Court also agreed with the Board that Mr. Charles' 1980 Claim was final. The Veterans Court held that Mr. Charles failed to appeal the 1980 decision and that by abandoning his 1982 Claim he abandoned the 1980 Claim. The Veterans Court recognized that Mr. Charles asserted that he had submitted new evidence within one year of the 1980 Claim, which would render the 1980 Rating Decision non-final, and the government had failed to address or refute that assertion. Id. at *22. The Veterans Court, however, reasoned that the abandonment of the 1982 Claim rendered his prior pending unadjudicated claims final, citing our decision in Williams v. Peake, 521 F.3d 1348, 1350 (Fed. Cir. 2008). Thus, the Veterans Court concluded that there was no clear error in the Board's determination that Mr. Charles was not entitled to an effective date earlier than February 5, 1991. Id. at *24.
Mr. Charles timely appealed to our court. We have jurisdiction to review the Veterans Court's decision ...