Boggs v. Peake

  United States Court of Appeals for the Federal Circuit

                                       2007-7137



                               CLINTON C. BOGGS, JR.,

                                                            Claimant-Appellant,

                                            v.


                 JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                            Respondent-Appellee.


       Richard A. Kaplan, Sidley Austin LLP, of Washington, DC, argued for claimant-
appellant. Of counsel on the brief were Barton F. Stichman and Louis J. George, National
Veterans Legal Services Program, of Washington, DC.

       Michael N. O’Connell, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-appellee.
With him on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Assistant
Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General
Counsel, and Jamie L. Mueller, Attorney, United States Department of Veterans Affairs, of
Washington, DC.


Appealed from: United States Court of Appeals for Veterans Claims

Judge William A. Moorman
  United States Court of Appeals for the Federal Circuit

                                      2007-7137

                               CLINTON C. BOGGS, Jr.

                                                     Claimant-Appellant,

                                           v.

                 JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                     Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in case no. 04-0235,
Judge William A. Moorman.
                           ___________________________

                              DECIDED: March 26, 2008
                            ___________________________

                                                                               *
 Before GAJARSA and DYK, Circuit Judges, and MORAN, Senior District Judge.

 GAJARSA, Circuit Judge.

       Claimant-Appellant Clinton C. Boggs, Jr. appeals a decision of the Court of

 Appeals for Veterans Claims (“CAVC”) affirming a decision of the Board of Veterans’

 Appeals (“Board”) that denied his 2002 claim for service connection. The central issue

 on appeal is whether Boggs’ 2002 claim is the same as a 1955 claim that had already

 been denied by the Board, or rather is a new claim that should have been reviewed by

 the Board on the merits.    Because the CAVC applied the wrong legal standard in

 determining that Boggs’ 2002 claim was the same as his 1955 claim, we reverse and

 remand for further proceedings.


       *
               Honorable James B. Moran, Senior District Judge, United States District
 Court for the Northern District of Illinois, sitting by designation.
                                    BACKGROUND

      Boggs served on active duty in the U.S. Army from December 1950 to March

1954. During this time, he served in combat in the Korean Conflict as part of the 69th

Field Artillery Unit of the 25th Infantry Division. Based on this service, Boggs received

the Korean Service Medal with two Campaign Stars, the National Defense Service

Medal, and the United Nations Service Medal.

      In 1955, Boggs filed a claim for service connection for a “left ear condition.” A

Department of Veterans Affairs (“VA”) medical examiner diagnosed Boggs as suffering

from a chronic ear infection in his left ear, which had originated in 1941, and conductive

hearing loss in his left ear. Conductive hearing loss is caused by problems in the

external or middle ear, which often include ear infections or obstructions such as

earwax. The Merck Manual § 8 at 781-83 (18th ed. 2006) (hereinafter “Merck Manual”).

Shortly after Boggs was diagnosed with conductive hearing loss, the VA Regional Office

(“RO”) reviewed Boggs’ claim and concluded that his conductive hearing loss was

caused by an ear infection that originated before his military service. The RO also

found that there was no evidence of any other service-related trauma or disease that

caused or aggravated his conductive hearing loss. Accordingly, the RO denied Boggs’

claim for service connection.

      Nearly 50 years later, on October 2, 2002, Boggs filed a second application for

service connection for hearing loss in his left ear. While his application was pending

with the VA, Boggs visited a private physician who diagnosed Boggs as having

sensorineural hearing loss.     Unlike conductive hearing loss, which results from a

problem in the middle or outer ear, sensorineural hearing loss results from lesions of the




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inner ear or auditory nerve. Merck Manual at 781. In addition, whereas conductive

hearing loss is often caused by ear infections or obstructions, sensorineural hearing

loss is often caused by acoustic trauma or repeated exposure to loud noise. Id. at 782-

83.

      Initially, the RO treated Boggs’ 2002 claim as an attempt to reopen his 1955

claim and notified him that new and material evidence would be required to reopen his

claim. However, when the RO ultimately considered Boggs’ 2002 claim, its decision

only referred to the claim as a “new claim” and failed to specify the new and material

evidence requirement.    Accordingly, the RO conducted a de novo review of the

evidence offered by Boggs to support his 2002 claim for service connection. Among the

evidence the RO considered were the recent medical treatment reports from Boggs’

private physician diagnosing him with sensorineural hearing loss.          Despite this

evidence, the RO found that Boggs had failed to establish that his injury was related to

his military service. Accordingly, the RO denied Boggs’ claim for service connection.

Boggs then appealed to the Board.

      Although the RO’s decision appears to have treated Boggs’ 2002 claim as a new

claim, the Board determined that Boggs was attempting to reopen his 1955 claim. The

Board’s rationale was that both the 2002 and 1955 claims involved left-ear hearing loss.

Moreover, the Board found that Boggs had failed to present new and material evidence

to support his claim, which pursuant to 38 U.S.C. § 5108 and 38 C.F.R. § 3.156, is

required to reopen a claim that has been denied by the Board. In particular, the Board

found that Boggs’ diagnosis for sensorineural hearing loss was cumulative with the

evidence of conductive hearing loss he had submitted for his 1955 claim. Based upon




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its finding that Boggs failed to present new and material evidence, the Board denied

Boggs’ 2002 claim as a failed attempt to reopen his 1955 claim. Boggs then appealed

to the CAVC.

         Before the CAVC, Boggs argued that the Board erred by categorizing his 2002

claim as a claim for hearing loss rather than as a claim for sensorineural hearing loss.

Essentially, Boggs argued that his 2002 claim was for sensorineural hearing loss that

was caused by the loud noises he experienced on the artillery lines in the Korean

Conflict, as distinguished from his 1955 claim for conductive hearing loss that had been

caused by his preexisting chronic ear infection. The CAVC disagreed. The CAVC held

that hearing loss is the same injury whether it involves an injury to the inner ear

(sensorineural hearing loss) or an injury to the middle or outer ear (conductive hearing

loss).     In particular, despite acknowledging that conductive hearing loss and

sensorineural hearing loss have different etiologies, i.e. causes, the CAVC held that

they should be considered the same because they involve the same symptomatology,

i.e. loss of hearing. Thus, because Boggs’ 2002 and 1955 claims both involved left-ear

hearing loss, the CAVC concluded that the Board had not erred in denying Boggs’ 2002

claim as an attempt to reopen his 1955 claim. Boggs now appeals the CAVC’s decision

to this court.

                      JURISDICTION AND STANDARD OF REVIEW

         This court has exclusive but limited jurisdiction to review decisions of the CAVC

under 38 U.S.C. § 7292(c). Specifically, we have “exclusive jurisdiction to review and

decide any challenge to the validity of any statute or regulation or any interpretation

thereof brought under this section, and to interpret constitutional and statutory




2007-7137                                    4
provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c).

However, “[e]xcept to the extent that an appeal under this chapter presents a

constitutional issue, the Court of Appeals may not review (A) a challenge to a factual

determination, or (B) a challenge to a law or regulation as applied to the facts of a

particular case.” 38 U.S.C. § 7292(d)(2). In the present case, we have jurisdiction to

interpret 38 U.S.C. § 7104(b) to determine the correct legal standard for deciding

whether two claims for service connection are one and the same.

      In reviewing the decision of the CAVC, this Court must decide “all relevant

questions of law, including interpreting constitutional and statutory provisions.”

38 U.S.C. § 7292(d)(1). We review construction of a statute or regulation de novo.

Summers v. Gober, 225 F.3d 1293, 1295 (Fed. Cir. 2000).

                                      ANALYSIS

      As a general rule, “when a claim is disallowed by the Board, the claim may not

thereafter be reopened and allowed and a claim based upon the same factual basis

may not be considered.” 38 U.S.C. § 7104(b) (emphasis added). The purpose of

§ 7104(b) is “to preserve the finality of Board decisions.” Dittrich v. West, 163 F.3d

1349, 1351 (Fed. Cir. 1998). There are only two statutorily created exceptions to the

rule of finality for veterans claims in § 7104(b). Cook v. Principi, 318 F.3d 1334, 1337

(Fed. Cir. 2002) (en banc).    First, under 38 U.S.C. § 5108, “[i]f new and material

evidence is presented or secured with respect to a claim which has been disallowed,

the Secretary shall reopen the claim and review the former disposition of the claim.”

See also 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)

(“[T]he Board does not have jurisdiction to consider a claim which it previously




2007-7137                                  5
adjudicated unless new and material evidence is presented, and before the Board may

reopen such a claim, it must so find.”). Second, a final decision “is subject to revision

on the grounds of clear and unmistakable error.” Cook, 318 F.3d at 1337 (quoting 38

U.S.C. §§ 5109A (decision by the Secretary) & 7111 (decision by the Board)). Thus,

absent a claim of clear and unmistakable error, a veteran must present new and

material evidence to support any claim for service connection that rests upon the same

factual basis as an earlier claim that has been denied by the Board.

       In this case, this court must decide for the first time when two claims should be

considered to have the “same factual basis” for purposes of 38 U.S.C. § 7104(b). If a

veteran’s claim does not have the same factual basis as a prior claim, then the veteran

is not seeking to reopen his prior claim but rather is opening a new claim. Moreover, if

the veteran is opening a new claim, the new and material evidence requirement of 38

U.S.C. § 5108 is inapplicable.

       The legislative history of 38 U.S.C. § 7104(b) indicates that the “factual basis” of

a veteran’s claim for service connection is the veteran’s underlying disease or injury,

rather than the symptoms of that disease or injury. In 1957, Congress consolidated

“into a single act the subject matter of the extensive body of existing legislation

authorizing and governing the payment of compensation for service-connected disability

or death to persons who served in the military, naval, or air force of the United States.”

H.R. Rep. No. 85-279, at 2 (1957). This act was known as the Veterans’ Benefit Act of

1957 (“VBA”), Pub L. No. 85-86, 71 Stat. 83 (1957). In addition to consolidating existing

veterans’ legislation, the VBA also consolidated “all the administrative provisions

relating to . . . all benefits administered by the Veterans’ Administration.” H.R. Rep. No.




2007-7137                                   6
85-279, at 2. One such administrative provision was 38 C.F.R. § 3.201(a) (1956), which

provides:

      New and material evidence, relating to the same factual basis (such as, in
      the case of a living veteran, the same disease or injury) as that of the
      disallowed claim, submitted subsequent to the final disallowance of the
      claim will constitute a new claim and have all the attributes thereof . . . .

38 C.F.R. § 3.201(a) (1956) (emphasis added). As incorporated into the VBA, this

administrative provision became:

      Where a claim has been finally disallowed, a later claim on the same
      factual basis, if supported by new and material evidence, shall have the
      attributes of a new claim . . . .

VBA § 904(a) (codified at 38 U.S.C. § 3004 (1958)) (emphasis added).                  In the

intervening years, Congress amended this provision several times, ultimately bifurcating

the provision into its current form, which is the jurisdictional limitation of 38 U.S.C.

§ 7104(b) and the claim reopening provision at 38 U.S.C. § 5108. The fact that the term

“same factual basis” has been present in each of these amended provisions strongly

suggests that term continues to have the meaning it had when VBA was enacted in

1957. As noted, the regulation initially incorporated into the VBA provided that the term

“same factual basis” referred to, “in the case of a living veteran, the same disease or

injury.” 38 C.F.R. § 3.201(a) (1956). Accordingly, we hold that the “factual basis” of a

claim for purposes of 38 U.S.C. § 7104(b) is the veteran’s disease or injury rather than

the symptoms of the veteran’s disease or injury.

      In addition, we hold that a properly diagnosed disease or injury cannot be

considered the same factual basis as distinctly diagnosed disease or injury. It follows

that because § 7104(b) distinguishes claims according to their factual bases, claims

based upon distinctly and properly diagnosed diseases or injuries cannot be considered



2007-7137                                  7
the same claim. 1 This holding is consistent with our precedent in Ephraim v. Brown, 82

F.3d 399 (Fed. Cir. 1996). In Ephraim, the court considered whether it had jurisdiction

over a claim brought under the Veterans’ Judicial Review Act (“VJRA”), Pub. L. No. 100-

687, § 402, 102 Stat. 4105, 4122 (1988) (see 38 U.S.C. § 7251 note). Ephraim, 82 F.3d

at 402. Under § 402 of the VJRA, the CAVC lacks jurisdiction over claims for which a

notice of disagreement (“NOD”) was filed before the date of enactment of the VJRA. Id.

at 400. The issue in Ephraim was whether two claims for which the veteran had filed

two separate NODs were in fact the same claim. Id. at 401. The issue arose because

the veteran had filed a NOD for the first claim before the date of enactment of the VJRA

but had filed a NOD for the second claim after the date of enactment of the VJRA. Id. at

400, 401.   The first claim brought by the veteran was based upon a diagnosis of

depressive neurosis; the second claim was based upon a diagnosis of post-traumatic

stress disorder (“PTSD”). Id. Because the NOD for the depressive neurosis claim was

filed before the date of enactment of the VJRA, the CAVC had no jurisdiction over that

claim. Therefore, if the depressive neurosis and PTSD claims were the same, then the

CAVC also would lack jurisdiction over the PTSD claim.

      The veteran in Ephraim argued that his two claims were not identical because

they were based upon distinct medical diagnoses. Id. at 401. However, the CAVC held

that the two claims were the same because the depressive neurosis and PTSD

      1
              Our holding does not impose a new requirement that a veteran must
submit a diagnosis by a medical doctor to establish a claim for service connection.
Indeed, numerous veterans’ statutes and regulations require that the VA consider lay
evidence when considering a veteran’s a claim for disability benefits and “make clear
that competent lay evidence can be sufficient in and of itself.” Buchanan v. Nicholson,
451 F.3d 1331, 1335 (Fed. Cir. 2006) (discussing 38 U.S.C. §§ 1154(a), 5107(b) & 38
C.F.R. §§ 3.303(a), 3.307(b)); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77
(Fed. Cir. 2007).


2007-7137                                  8
diagnoses were “inextricably intertwined.” Id. Accordingly, the CAVC dismissed the

veteran’s appeal of his PTSD claim for lack of jurisdiction. Id. On appeal, we reversed.

In particular, we held that “a newly diagnosed disorder, whether or not medically related

to a previously diagnosed disorder, can not be the same claim when it has not been

previously considered.” Id. In other words, we held that claims based on separate and

distinctly diagnosed diseases or injuries must be considered separate and distinct

claims. See id.

       In this case, the CAVC held that even where two claims are based upon separate

and distinctly diagnosed injuries, they can be considered one and the same for

purposes of 38 U.S.C. § 7104(b) if they involve the same symptomatology.                  We

disagree for several reasons. First, we see no reason to interpret 38 U.S.C. § 7104(b)

inconsistently with our interpretation of VJRA § 402 in Ephraim.           Indeed, as both

provisions are designed to limit the jurisdiction of the CAVC, it is logical to interpret them

consistently. Just as claims based upon distinctly diagnosed diseases or injuries are

considered distinct claims for purposes of VJRA § 402, claims based upon distinctly

diagnosed diseases or injuries should be considered distinct claims for purposes of 38

U.S.C. § 7104(b).

       Second, distinguishing claims based upon distinct medical diagnoses is more

accurate and reliable than distinguishing claims according to subjective descriptions of

the veteran’s symptoms. 2 Where the veteran brings a claim for benefits based upon a




       2
              See Dorland’s Illustrated Medical Dictionary 1805 (30th ed. 2003)
(defining “symptom” as “any subjective evidence of disease . . . as perceived by the
patient”); Webster’s Third New International Dictionary 2318 (2002) (defining “symptom”
as “subjective evidence of disease or physical disturbance observed by the patient”).


2007-7137                                     9
medical diagnosis of a particular disease or injury, the VA must consider whether that

precise, medically defined disease or injury is service connected.

      At the same time, a misdiagnosis cannot be the basis for a new claim. Under

§ 7104(b), once a claim for service connection of a properly diagnosed disease or injury

has been denied by the Board, the Board cannot exercise jurisdiction over a new claim

based upon that same disease or injury. Therefore, a veteran is not entitled to a new

claim based upon that same disease or injury merely because he has been

misdiagnosed as having a different disease or injury. Accordingly, if the VA establishes,

via medical evidence, (1) that the veteran has been misdiagnosed and (2) that the

Board has already denied service connection for the veteran’s properly diagnosed

disease or injury, then § 7104(b) will bar the Board from exercising jurisdiction over the

veteran’s claim as a new and independent claim. However, if the veteran has also

provided new and material evidence to establish a service connection, then the Board

must exercise jurisdiction over the veteran’s claim under § 5108 as a reopening of the

previously denied claim.

      In addition, a new theory of causation for the same disease or injury that was the

subject of a previously denied claim cannot be the basis of a new claim under

§ 7104(b). However, if the evidence supporting the veteran’s new theory of causation

constitutes new and material evidence, then the VA must reopen the veteran’s claim

under § 5108.

      Third, under the VA’s regulations, the appropriate time to consider the veteran’s

symptoms is when determining the amount of compensation to which the veteran is

entitled. See 38 C.F.R. § 4.14 (instructing the Secretary to avoid the “evaluation of the




2007-7137                                  10
same disability under various diagnoses” when determining disability ratings for

compensation purposes); see also 38 C.F.R. §§ 3.385, 4.85 (instructing the Secretary to

consider the veteran’s degree of hearing impairment when determining disability ratings

for compensation purposes).        Under these regulations, a veteran cannot be

compensated more than once for the same disability.           However, since different

diagnosed diseases or injuries can have different causes, a veteran should not be

precluded from showing that one diagnosed disease or injury is service connected

merely because a different diagnosed disease or injury was not.

       In sum, under the CAVC’s symptomatology standard, a later-filed claim could be

prejudiced by a prior claim merely because the two claims involved diseases or injuries

with overlapping symptoms. However, under the proper reading of § 7104(b), a claim

for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different

diagnosed disease or injury. Rather, the two claims must be considered independently

because they rest on distinct factual bases. Moreover, treating such claims distinctly

serves the intended purpose of 38 U.S.C. § 7104(b) by preserving the finality of Board

decisions without unfairly precluding veterans from pursuing claims for distinct diseases

or injuries.

       Accordingly, we hold that the CAVC erred as a matter of law in finding that claims

based upon distinctly diagnosed diseases or injuries can be considered the same for

purposes of 38 U.S.C. § 7104(b) merely because those diseases or injuries involve

overlapping symptomatology. The proper reading of 38 U.S.C. § 7104(b) and the test

thereunder is that claims based upon distinctly diagnosed diseases or injuries must be

considered separate and distinct claims. We leave it to the VA, operating under the




2007-7137                                  11
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) framework,

to define this test with greater precision as necessary.

                                     CONCLUSION

       For the forgoing reasons, we reverse the decision of the CAVC and remand for a

determination of whether Boggs’ 2002 claim is based upon a different diagnosed

disease or injury than his 1955 claim. If the CAVC finds that the two claims are based

on different and properly diagnosed diseases or injuries, then Boggs’s 2002 claim is a

new claim and must be reviewed on the merits.

                                 REVERSED AND REMANDED

       Costs to appellant.




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