United States Court of Appeals for Veterans Claims
to Hear Arguments at Washburn Law, September 29, 2009

About the Court

The United States Court of Appeals for Veterans Claims is a national court of record, established under Article I of the Constitution of the United States. The Court has exclusive jurisdiction to provide judicial review of final decisions by the Board of Veterans' Appeals (Board), an entity within the Department of Veterans Affairs (VA). The Court predominantly hears appeals of Board decisions concerning entitlement to VA benefits for service-connected disabilities, survivor benefits, and other benefits such as education payments and waivers of indebtedness. The majority of the Court's dispositions are made through a non-precedential single-judge procedure. Precedential decisions by the Court are made either by a three-judge panel or a full-Court panel. There are seven active judges on the Court who have been appointed to serve 13 or 15-year appointments. Additionally, there are six retired judges who may be recalled for at least 90 days per year. Learn more about the history of the Court at its website.

Quick Reminders

Security Check: Leave cell phones, backpacks, and/or purses in your lockers/cars/homes to expedite entrance to the courtroom. Make sure ALL CELL PHONES ARE TURNED OFF (cell phone must be shown to U.S. Marshals to verify that it has been turned off).

Please be courteous and kind to the judges, clerks, attorneys, U.S. Marshals, and students that have worked to prepare for this event. Please remember to be quiet in the halls outside the courtroom and inside the courtroom at all times. Dress appropriately for court.

Photograph: United States flags. Photo copyright Paul Maguire. Use prohibited without permission.

Graphic: Seal of the United States Court of Appeals for Veterans Claims.The Center for Law and Government and the Center for Excellence in Advocacy will host the United States Court of Appeals for Veterans Claims on Tuesday, September 29, 2009 in Topeka, Kansas. Arguments will be held in the Robinson Courtroom and Bianchino Technology Center beginning at 10:50 a.m. Everyone must be in the courtroom and seated by 10:29 a.m.

Overflow seating will be available in Room 100 and Room 120.

Schedule

Panel

Briefs

All briefs and other documents associated with this case are posted at the Court's website:

Selected items of interest include:

Case on the Docket

The Court will hear arguments in Arthur Hickson, Appellant v. Eric K. Shinseki, Secretary of Veterans Affairs, Appellee. Counsel for the Appellant is Kenneth M. Carpenter, '73. Counsel for the parties are allotted 30 minutes each for presentation of argument.

Summary of Proceedings

The question before the Court is whether the Board of Veterans' Appeals (Board), after determining that new and material evidence has been presented and reopening a claim, can review the merits of the claim without sending the matter back to the VA regional office (RO) for an initial adjudication.

Reopening an Readjudication of Veteran's Claims

Once a claim for VA benefits has been finally denied or not granted in full, that claim will not be reopened to be readjudicated unless new and material evidence is presented by the claimant. 38 U.S.C. § 5108. New and material evidence is defined as:

New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

38 C.F.R. § 3.156(a) (2009); see Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). A claim to reopen may be filed with a VA RO at any time after it has been finally denied. If the RO determines that new and material evidence has not been presented to reopen the claim, the claimant can appeal that determination to the Board.

Relevant Case Law

In Bernard v. Brown, 4 Vet.App. 384, 390 (1993), the Court considered whether the Board, after determining that new and material evidence had been submitted to reopen a previously denied claim, was required to remand a claim to the RO for readjudication on the merits of the claim in the first instance. The Court held that the Board was not required to remand the claim if the Board first secures a waiver from the claimant or otherwise determine that there is no prejudice to the claimant by proceeding to adjudicate the question or issue. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996) (stating that, in new and material evidence cases, the Board's jurisdiction does not vary "according to how the [RO] ruled").

In 2003, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the Board could not procure evidence and decide a claim for veterans benefits based on evidence that had never been considered by the RO because it would deny "appellants 'one review on appeal to the Secretary' when the Board considers additional evidence without having to remand the case to the [agency of original jurisdiction] or without having to obtain the appellant's waiver." Disabled Am. Veterans (DAV) v. Sec'y Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003); see 38 U.S.C. § 7104(a) ("All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary.").

Subsequent to the Federal Circuit's decision in DAV, VA revised 38 C.F.R. § 20.903, which now states:

If . . . the Board intends to consider law not already considered by the agency of original jurisdiction and such consideration could result in denial of the appeal, the Board will notify the appellant and his or her representative, if any, of its intent to do so and that such consideration in the first instance by the Board could result in denial of the appeal. The notice from the Board will contain a copy or summary of the law to be considered. A period of 60 days from the date the Board furnishes the notice will be allowed for response, which may include the submission of relevant evidence or argument. The date the Board furnishes the notice will be presumed to be the same as the date of the letter that accompanies the notice for purposes of determining whether a response was timely filed. No notice is required under this paragraph if the Board intends to grant the benefit being sought or if the appellant or the appellant's representative has advanced or otherwise argued the applicability of the law in question.

38 C.F.R. § 20.903(b) (2009).

In August 2006, this Court, in addressing whether the Board could adjudicate a theory of clear and unmistakable error in a previous RO decision where that theory had not been raised to or adjudicated by the RO in the decision on appeal, stated: "Once the Board has jurisdiction over a claim . . . it has the authority to address all issues related to that claim, even those not previously decided by the RO." Jarrell v. Nicholson, 20 Vet.App. 326, 332 (2006). The Court further held:

To exercise this authority with regard to questions or issues not previously addressed by an RO in the first instance, however, the Board must secure a waiver from a claimant or otherwise determine that there would be no prejudice to the claimant by proceeding to adjudicate the question or issue; otherwise remand is appropriate.

Id. In Sims v. Shinseki, ___ F.3d ___, No. 06-0335 (Fed. Cir., Aug. 13, 2009), the Federal Circuit, in considering whether the RO upon the Board's direction to reopen a previously denied claim can issue an Supplemental Statement of the Case or must issue a new rating decision and Statement of the Case (SOC), held that the merits of a reopened claim are not a new "issue" or "matter."

Factual Summary

Veteran Arthur Hickson served honorably in the U.S. Air Force from July 1968 to February 1969. In May 1981, he claimed service connection for a nervous condition that was construed by the RO as a psychiatric disorder. The RO denied the claim in June 1981, and Mr. Hickson appealed to the Board. In September 1982, the Board denied his claim finding that his service medical records showed no evidence of a chronic psychiatric abnormality such as a psychosis or neurosis, and that Mr. Hickson's only post-service diagnosis was a personality disorder, which is considered a "developmental defect" and therefore not attributable to his service.[1]

In February 1999, Mr. Hickson sought to reopen his claim for service connection for a nervous condition. In August 1999, the RO determined that new and material evidence had not been submitted to reopen that claim. The RO found that although Mr. Hickson had submitted some new evidence in the form of diagnoses of a psychotic disorder and schizophrenia, this evidence was not material in light of the absence of evidence showing incurrence of the disorder in service or within one year of discharge from service. Mr. Hickson appealed. After a lengthy development of the claim, in June 2006, Mr. Hickson submitted three affidavits signed by him, his mother, and his sister, that asserted that he had difficulties during and immediately following service. In September 2006, Mr. Hickson, through counsel, submitted the following statement to the RO: "The veteran waives any further time period and requests that the claims file be immediately transferred to the [Board] for de novo review." He also attached additional arguments in support of both the reopening and merits of his appeal.

In January 2007, Mr. Hickson, through counsel, submitted to the Board a statement that said: "I request that the Board proceed with review of [Mr. Hickson's] appeal based on all the evidence of record, and issue a favorable decision granting benefits as soon as possible." The February 2007 Board determined that the evidence Mr. Hickson submitted since the September 1982 Board decision was new and material evidence and therefore sufficient to reopen his claim. Concerning the propriety of reviewing the merits of Mr. Hickson's claim, The Board considered the evidence of record and stated:

The veteran himself and his counsel have not contended that de novo review by the RO is necessary in this case. Indeed, in his September 7, 2006[,] submission to the Board the veteran's attorney urged the Board to grant the claim based upon an alleged "presumption of service connection." It is clear from argument submitted by the attorney that the veteran expects the Board to render a decision on the merits. A September 7, 2006[,] letter from the veteran's attorney stated "The veteran . . . requests that the claims file be transferred to the Board of Veterans' Appeals for de novo review.

R. at 15-16. The Board found that this statement by Mr. Hickson was an apparent waiver of consideration by the RO of the merits of the claim. The Board then found that because (1) Mr. Hickson had been provided adequate notice concerning what was required to substantiate his claim and an opportunity for a hearing, (2) there was no indication that there were any outstanding treatment records not of record, and (3) he was provided an adequate medical examination, that Mr. Hickson had presented all available existing evidence and argument as to the merits of his claim and he would not be prejudiced by the Board's consideration of that issue. The Board considered the merits and concluded that service connection was not warranted because the most probative evidence of record failed to establish in-service incurrence of a psychiatric disability and the evidence failed to demonstrate a medical nexus between any in-service disability and Mr. Hickson's current diagnosed condition. This appeal followed.

Arguments Presented on Appeal

In his initial brief, Mr. Hickson initially argued that the Board lacked subject-matter jurisdiction to adjudicate his reopened service-connection claim on the merits. He maintained that this Court's decision in Bernard v. Brown, 4 Vet.App. 384 (1993) was inconsistent with, and consequently overruled by, the U.S. Court of Appeals for the Federal Circuit's (Federal Circuit) decision in Disabled Am. Veterans (DAV) v. Sec'y Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)[2]. Alternatively, he asserted that, even assuming the Board did not err in adjudicating his service-connection claim on the merits, the Board erred in not providing him the requisite notice and opportunity to respond to the Board's consideration of a matter not decided by the RO and not providing an adequate statement of reasons or bases for why failure to provide such notice and opportunity to comment was not prejudicial to him.

The Secretary contends that the Board properly decided to reopen and adjudicate Mr. Hickson's service-connection claim on the merits and that the Board adequately considered and discussed whether Mr. Hickson would be prejudiced by the Board's consideration of the merits of the matter in the first instance.

In March 2009, this case was stayed pending the resolution of another case, Treece v. Shinseki, No. 07-0388, that was sent to a panel for consideration of 38 C.F.R. § 20.903. After Treece was resolved by a joint motion for remand, the parties here were ordered to brief on § 20.903 as well as the potential effect of Jarrell v. Nicholson, 20 Vet.App. 326 (2006). In response to the Court's order, Mr. Hickson argues that because the Board relied on statutes, regulations, and Court precedent in addition to what the RO relied upon and failed to notify him that it was going to do so, it violated the notice provisions of § 20.903. He further asserts that Jarrell, supra, is both factually and legally distinguishable from this matter and therefore should not effect his appeal.

The Secretary contends that the Board did not violate § 20.903 because it did not apply law not considered by the RO and because Mr. Hickson specifically argued the merits of his service-connection claim before the Board. The Secretary further maintains that the sole purpose of § 20.903 is to avoid prejudicing an appellant when the Board intends to consider law that was not previously considered by the RO. Because the Board specifically considered and thoroughly analyzed any possible prejudice to Mr. Hickson's procedural rights, the Secretary asserts that the purpose of § 20.903 was satisfied. The Secretary also argues that Jarrell, supra, supports the position that the Board had jurisdiction to consider Mr. Hickson's service-connection claim on the merits after reopening the claim because both the reopening and the service connection were part of the same matter on appeal.

Footnotes

1. The U.S. Court of Appeals for Veterans Claims was not created until the Veterans' Judicial Review Act on November 18, 1988. Thus, at the time of the September 1982 Board decision, there was no judicial body to which Mr. Hickson could appeal. The Board's decision therefore became final. [Return to text.]

2. On August 24, 2009, Mr. Hickson filed a notice stating his intent to withdraw his original argument regarding the status of Bernard v. Brown, 4 Vet.App. 384 (1993), based on the Federal Circuit's decision in Sims v. Shinseki, ___ F.3d ___, No. 06-0335 (Fed. Cir., Aug. 13, 2009), and to rely solely on the supplemental argument he submitted in response to the Court's March 2009 order concerning 38 C.F.R. § 20.903. [Return to text.]

Biographies of Judges

Chief Judge William P. Greene, Jr.

Photograph: William Greene.Chief Judge William P. Greene, Jr. was appointed by the President of the United States as a Judge of the United States Court of Appeals for Veterans Claims on November 7, 1997. The United States Court of Appeals for Veterans Claims is a national court of record, established under Article I of the Constitution of the United States. The Court has exclusive jurisdiction to provide judicial review of final decisions by the Board of Veterans' Appeals, an entity within the Department of Veterans Affairs. There are seven active judges on the Court who have been appointed to serve 13 or 15-year appointments. Judge Greene was appointed for 15 years and assumed the responsibilities of the Chief Judge of the Court on August 8, 2005.

At the time of his nomination and appointment to the Court, Judge Greene was serving as a United States Immigration Judge. From June 13, 1993, until November 22, 1997, he presided over immigration cases in Maryland and Pennsylvania.

Judge Greene was born in Bluefield, West Virginia. In 1965, he graduated from West Virginia State College with a Bachelor of Arts degree in Political Science. In 1968, he received a Juris Doctor degree from Howard University School of Law. Following graduation from law school and admission to the West Virginia Bar, he was appointed a commissioned officer in the United States Army Judge Advocate General's Corps. During his career as a Judge Advocate, he completed his military education at the Basic, Advanced and Military Judges' courses at The Judge Advocate General's School, Charlottesville, Virginia; the Army Command and General Staff College, Fort Leavenworth, Kansas; and the U.S. Army War College, Carlisle, Pennsylvania.

Before becoming an Immigration Judge, Judge Greene held many important positions in the United States Army. He served as the Chief Prosecutor at Fort Knox, Kentucky, followed by duty as the Chief Defense Counsel in the Army Command in Hawaii. He was the Army's chief recruiter for lawyers from 1974 to 1977 and in 1981, the Judge Advocate General of the Army selected him as the Department Chair of the Criminal Law Division at The Judge Advocate General's School. He also served in Germany as the Deputy Staff Judge Advocate of the Third Infantry Division and in Korea as the Staff Judge Advocate of the Second Infantry Division. Following his graduation from the U.S. Army War college in 1986, he was selected to serve as the Staff Judge Advocate of the United States Military Academy at West Point, New York. That assignment was followed by another selection as Staff Judge Advocate at Fort Leavenworth, Kansas, with duties that also included legal oversight of the Armed Forces' maximum security prison. While serving in this last position, he was selected and appointed by the Attorney General of the United States as a United States Immigration Judge. He retired as a Colonel from the United States Army in 1993 to accept that appointment. During his Army service, he received several awards including three Legions of Merit. On October 7, 1997, the Secretary of the Army designated Judge Greene as Honorary Colonel of the Judge Advocate General's Corps Regiment. In October 2000, Judge Greene was recognized as a Distinguished Member of the Judge Advocate General's Corps Regiment.

Judge Bruce E. Kasold

Photograph: Bruce Kasold.Judge Bruce E. Kasold was appointed a Judge of the United States Court of Appeals for Veterans Claims by the President of the United States on December 13, 2003. Judge Kasold took the oath of office on December 31, 2003.

Judge Kasold brings to the federal judiciary 20 years of experience in civil and criminal litigation, administrative and personnel law, and office management in both government and private practice. Before his appointment to the bench, Judge Kasold served as Chief Counsel for the Secretary of the Senate and Senate Sergeant at Arms, a position he had held since late 1998. In that non-partisan position, he advised Senate leaders on general legal matters and issues at the forefront of the nation's political landscape, including the electoral college, impeachment of the President, and historical management of an evenly divided Senate.

Judge Kasold also served as Chief Counsel for the Senate Committee on Rules and Administration, where his work included marshaling the Senate's largest series of campaign finance hearings in a decade and conducting an investigation into allegations of state election fraud.

Prior to working in the Senate, Judge Kasold was a commercial and government contracts litigation attorney with the law firm Holland & Knight. Judge Kasold is also a retired United States Army Lieutenant Colonel, with service in the Air Defense Artillery and Judge Advocate General's Corps.

Judge Kasold earned a Bachelor of Science degree from the United States Military Academy, and a Juris Doctor, cum laude, from the University of Florida. He also holds an LL.M. from Georgetown University and an LL.M. equivalent from the Judge Advocate General's Graduate School. He is admitted to practice before the United States Supreme Court, the Florida Supreme Court, and the District of Columbia Court of Appeals. He is a member of the Florida Bar, the District of Columbia Bar, the Federal Bar Association, and the Order of the Coif.

Judge Robert N. Davis

Photograph: Robert Davis.Judge Davis was appointed by the President of the United States as a Judge of the United States Court of Appeals for Veterans Claims on December 4, 2004.

Prior to his judicial appointment, Judge Robert N. Davis was a full tenured professor of law at Stetson University College of Law, Gulfport, Florida. He joined the Stetson law faculty in August 2001 after teaching for thirteen years at the University of Mississippi School of Law where he was a tenured full professor. He has also held teaching positions at the University of South Florida, Georgetown University Law Center, the University of Memphis, and Washington and Lee University. He has taught in summer programs at the University of Hawaii, Downing College, Cambridge University, England, Estonia and has lectured at Makerere University School of Law in Uganda, Africa and at the University of Papua New Guinea.

Judge Davis has taught constitutional law, administrative law, national/international security law, alternative dispute resolution, terrorism/counter-terrorism and international and domestic sports law. He is the founder of the Journal of National Security Law, and has held positions of leadership with the American Bar Associations' Standing Committee on Law and National Security, the Federalist Society and the American Association of Law Schools. He has authored numerous articles on a variety of subjects including a recent article published by the Brooklyn Journal of International Law entitled: "Striking the Balance: National Security vs. Civil Liberties." He has been a frequent commentator on local television, radio and newspapers regarding national security, terrorism, constitutional law and elections issues. While teaching in Mississippi, he was appointed by the Governor as a Mississippi Commissioner to the National Conference of Commissioners on Uniform State Laws.

Judge Davis has extensive experience as an arbitrator and mediator with the American Arbitration Association. He was a mediator with the United States Postal Service and was an arbitration panel member with the United States Olympic Committee. Judge Davis was a member of the United States Navy Reserves and was recalled to active duty after the terrorist attacks on September 11, 2001. He was assigned to the Joint Intelligence Directorate at MacDill Air Force Base, Tampa, Florida.

Judge Davis graduated from the University of Hartford, West Hartford, Connecticut in 1975 and the Georgetown University Law Center, Washington, D.C. in 1978. He practiced as an appellate attorney for five years with the Commodity Futures Trading Commission, Washington, D.C. Thereafter, Judge Davis spent four years with the United States Department of Education, Washington, D.C., in the business and administrative law division. Judge Davis also briefly served as a Special Assistant United States Attorney in the District of Columbia as part of a federal agency exchange program.