Veteranclaims’s Blog

March 14, 2009

Arguments Supported by Citation to Authorities

Filed under: Arguments Supported, Berkowitz, Citations, Leonard, Locklear — veteranclaims @ 5:14 pm

These cases refer to where the veteran was represented by an attorney, yet the same could be also applied to pro se veterans. This is one of the reasons for this Blog, to help veterans learn about research sources, how to do research so that can present their arguments in the best light possible.

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United States v. Berkowitz, 927 F. 2d 1376, 1384 (7th Cir. 1991) (“We repeatedly have made clear that perfunctory and undeveloped arguments . . . are waived.”)
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Locklear v. Nicholson, No. 04-743 (Decided September 19, 2006)

“Mr. Locklear’s argument that the Board erred in failing to consider a claim for service connection for reflux disease is far too terse to warrant detailed analysis by the Court.[ 4 On this point, it is of great significance that Mr. Locklear is represented by counsel in this case.]4 See U.S. Vet. App. R. 28(a)(5) (providing that an appellant’s brief must contain “an argument . . . and the reasons for [it], with citations to the authorities . . . relied on”); see also United States v. Berkowitz, 927 F. 2d 1376, 1384 (7th Cir. 1991) (“We repeatedly have made clear that perfunctory and undeveloped arguments . . . are waived.”). In that regard, Mr. Locklear merely states that at least one doctor “assessed his condition to be the result of gastrophagal reflux” and then concludes that the Board should have considered a claim for service connection for that condition. Appellant’s Br. at 5. He makes no effort to explain how the evidence to which he refers amounts to a claim for service connection or why the Board should have considered it as such. The Court therefore cannot conclude that the Board erred in not considering such a claim.[ 5 The Court does not agree with the Secretary that such a claim was considered and denied. The portion of the Board decision referred to by the Secretary simply does not reflect that.]5″
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See Leonard v. Principi, 17 Vet.App. 447, 452-53 (2004) (noting that appellant’s brief must cite to authorities relied on to support arguments).
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Search Terms: LEONARD

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 01-1505

Larry E. Previous DocumentLeonardNext Document, Appellant,

v.

Anthony J. Principi,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Decided February 20, 2004)

Kenneth M. Carpenter, of Topeka, Kansas, was on the brief for the
appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant
General Counsel; Edward V. Cassidy, Jr., Acting Deputy Assistant General
Counsel; and Nicole Degraffenreed, all of Washington, D.C., were on the
pleadings for the appellee.

Before KRAMER, Chief Judge, and IVERS and GREENE, Judges.

KRAMER, Chief Judge: The appellant appeals through counsel a May
11, 2001, Board of Veterans’ Appeals (Board or BVA) decision that denied
an effective date prior to September 23, 1985, for the award of a rating
of total disability based on individual unemployability (TDIU). Record (R
.) at 8. The appellant and the Secretary have filed briefs, and the
appellant has filed a reply brief. The appeal is timely, and the Court
has jurisdiction pursuant to 38 U.S.C. 7252(a) and 7266(a). For the
reasons that follow, the Court will affirm the May 2001 decision of the
Board.

I. FACTS
The appellant served on active duty in the U.S. Army from September
1971 to September 1973. R. at 11. His service medical records reflect
that, in February 1973, he was hospitalized after having been involved in
an automobile accident (see, e.g., R. at 22, 27, 112); the diagnoses were (
1) “[c]losed fracture, left tibia and fibula,” (2) “[g]rade 2 [
acromioclavicular] separation, right,” and (3)
“[c]erebral concussion” (R. at 28). In February 1974, a VA
regional office (RO) granted service connection for a fracture of the left
tibia and fibula with 1/4-inch shortening, effective September 26, 1973,
and assigned a 20% rating; in addition, the RO, inter alia, denied service
connection for residuals of a right-shoulder injury. R. at 154. The
appellant appealed that decision. R. at 156, 164. In a November 1974
decision, the Board granted service connection for residuals of a right-
shoulder injury and denied a rating in excess of 20% for the appellant’s
service-connected left-leg disability. R. at 198. That same month, the
RO assigned a 10% rating for the service-connected right-shoulder
condition, effective September 26, 1973. R. at 201. The appellant
appealed the 10% rating assigned for his service-connected right-shoulder
condition and continued to appeal the 20% rating assigned for his service-
connected left-leg disability; the Board, in a June 1977 decision, awarded
the appellant a temporary total disability rating from August 1, 1975, to
February 1, 1976, based on postoperative residuals of left-leg surgery. R.
at 352-53. The Board, however, denied entitlement to increased ratings
for his service-connected right-shoulder and left-leg conditions. Id.
Following an October 1983 orthopedic examination, the RO, in December 1983,
increased to 30%, effective November 1, 1983, the appellant’s rating for
his service-connected left-leg disability. R. at 822.
After the appellant underwent an additional examination, the Board,
in June 1988, granted service connection for (1) organic brain syndrome
with depression and (2) a seizure disorder. R. at 1257. In a December
1988 decision implementing the June 1988 BVA decision, the RO assigned a
40% rating for post-traumatic seizure disorder, effective May 21, 1985,
and a 0% rating for organic brain syndrome, effective August 21, 1985; the
RO also denied a rating of TDIU. R. at 1277. The appellant appealed the
assigned ratings. R. at 1280, 1307, 1315, 1343. Eventually, the BVA, in
a November 1992 decision, increased to 70% his disability rating for his
service-connected organic brain syndrome and awarded him a rating of TDIU.
R. at 1452-53. The RO, in January 1993, assigned an effective date of May
21, 1985, for the award of service connection for his organic brain
syndrome and an effective date of January 16, 1991, for the award of his
TDIU rating. R. at 1462. In correspondence to the RO dated in April 1993,
the appellant asserted that he “disagree[d] with [the RO’s January 1993]
decision [to] award [him] a 70% evaluation for [his] service[-]connected [
o]rganic [b]rain [s]yndrome” and that “the medical evidence of record
clearly support[ed] a total evaluation for this condition effective May 21,
1985.” R. at 1493. Shortly thereafter, the RO
informed the appellant that, because he had never appealed the November
1992 BVA decision, “there [wa]s no further action that [could] be taken
unless [he] ha[d] new evidence to show [that] an evaluation of more than
70[% wa]s warranted.” R. at 1496. The appellant then appealed the
January 1991 effective date assigned for his TDIU rating. R. at 1498,
1515-17.
The Board, in an August 1994 decision, awarded the appellant an
earlier effective date of September 23, 1985, for his TDIU rating on the
basis that a letter received by the RO on that date “should properly be
considered the [appellant’s] initial claim for [a rating of TDIU].” R. at
1535. The Board also concluded that “nothing else in the claims files
. . . would warrant the assignment of an effective date prior to
September 23, 1985.” R. at 1536. In correspondence received by the RO in
December 1994, he requested an earlier effective date for his TDIU rating;
he asserted that a Social Security Administration decision demonstrated
that he was totally disabled as of January 1975. R. at 1544. In response,
the RO informed him that the Board already had decided that issue and that
he could file a motion for reconsideration of the Board’s decision or an
appeal to the Court. R. at 1554. In April 1995, the appellant filed a
motion for reconsideration with the BVA. R. at 1590. The Chairman of the
Board denied the motion in July 1995, and the appellant, in December 1995,
filed a Notice of Appeal (NOA) with the Court. R. at 1594. The Court, in
a June 1997 opinion, dismissed the appellant’s appeal for lack of
jurisdiction on the basis that he had failed to file a timely NOA;
specifically, the Court concluded that the appellant had “failed to timely
file both his request for reconsideration and, following the Chairman’s
decision on that motion, his NOA.” R. at 1596.
In correspondence received by the RO in April 1999, the appellant
asked that his “case be considered due to [clear and unmistakable error (
CUE)]”; he again asserted that he was entitled to an effective date in
1975 for his TDIU rating. R. at 1666. In March 2000, the BVA found no
CUE in the 1977 Board decision that denied entitlement to a TDIU rating or
in the 1994 BVA decision that granted an effective date of September 23,
1985, for the appellant’s TDIU rating. R. at 1682, 1687. The appellant
did not appeal that decision. The RO, in May 2000, after reviewing a VA
medical record dated in April 2000, issued a decision continuing the
appellant’s TDIU rating; the RO concluded that an effective date earlier
than September 23, 1985, was not warranted. R. at 1691. The appellant
filed a Notice of Disagreement (NOD) with respect to that decision; he
informed VA
that he wanted “to reopen [his] . . . claim for a total evaluation due to
all of [his] service[-]connected conditions” so that he would be granted “
an effective date of [September 26, 1973].” R. at 1694. He attached a
copy of the April 2000 VA medical record that reflected a staff
psychiatrist’s opinion that “his inability to learn new material,
impairment of recent memory, [and] psychotic relapses under minor stress
. . . ha[d] made him unemployable since 1973-4.” R. at 1695. The RO
issued a Statement of the Case (SOC) (R. at 1700-08), and the appellant
perfected an appeal to the BVA (R. at 1710).
In the May 2001 decision on appeal, the Board denied an effective
date prior to September 23, 1985, for the appellant’s TDIU rating. R. at
8. The Board noted that, “[a]lthough the Board’s August 1994 decision,
which determined that the correct effective date for TDIU was September 23,
1985, became final, applicable law provides that a claim which is the
subject of a prior final decision may nevertheless be reopened upon
presentation of new and material evidence.” R. at 5. The Board
concluded that, “[e]ven if the appellant had submitted ‘new and material’
evidence regarding his claim, the effective date for the grant of a TDIU [
rating] could never be earlier than the date [that] the RO received that
claim to reopen . . . .” R. at 7. The Board ultimately concluded that, “
absent CUE, there is no factual or legal basis upon which this appellant
could obtain the remedy he seeks, and his claim must be denied.” Id.
On appeal, the appellant argues that the Board “failed to comply with
38 C.F.R. 3.157(b)(1) [(2003)]” (Appellant’s Brief (Br.) at 14-15) and “
impermissibly converted the [RO’s] merit determination of the issue of
. . . an earlier effective date for the award of TDIU to a claim to
reopen” (Appellant’s Br. at 15). Specifically, he contends that 38 C.F.R
. 3.157(b)(1) “is silent regarding the requirement to submit new and
material evidence, and the Board erred by imposing upon [him] such a
requirement.” Appellant’s Br. at 16. In that regard, he argues that “the
issue of entitlement to an earlier effective date had not been previously
disallowed” and that “the requirement of 38 U.S.C. 5108 was not for
application in this case . . . .” Appellant’s Br. at 17. He further
contends that the April 2000 VA medical report (R. at 1695) “was the
predicate for the reopening of [the] issue [of] the assignment of an
effective date without the need for the submission of any further new and
material evidence . . . .” Appellant’s Br. at 19. He also argues that
the Board incorrectly applied 38 C.F.R. 3.400(q)(ii) (2003) to his claim
and that it instead should have
applied 38 C.F.R. 3.400(o) (2003). Appellant’s Br. at 21-24. In this
regard, he argues that his “underlying claim . . . was [for] entitlement
to TDIU, which is in the nature of a claim for an increased rating.”
Appellant’s Br. at 23. Finally, he argues that the RO never issued an SOC
after he filed, in April 1993, a timely NOD with respect to the RO’s
January 1993 decision as to “the rating assigned [for] the grant of
service connection for [organic brain syndrome], as well as the effective
date assigned for [that condition].” Appellant’s Br. at 25.
The Secretary counters that, “although under VA regulations the
receipt of the [April] 2000 outpatient report could be construed as an
informal claim for an increased rating, its receipt in this case in no way
impacts the appropriate effective date for TDIU because [the a]ppellant
already had an effective date earlier than would be provided by the
outpatient treatment report.” Secretary’s Br. at 9. In response to the
appellant’s contention that the Board improperly applied 38 C.F.R. 3.400(
q)(ii), the Secretary asserts that, “[a]bsent a finding of CUE in the
August 1994 [BVA] decision, the Board determined that the proper analysis
for determining entitlement to an earlier effective date was through the
submission of new and material evidence.” Secretary’s Br. at 11.
Regarding the appellant’s final argument, the Secretary contends that the
RO construed the April 1993 NOD “as a disagreement with the disability
evaluation assigned for his condition and not whether the appropriate
effective date was assigned.” Secretary’s Br. at 12. In addition, he
argues that, even if the Court construes that NOD as expressing
disagreement with the effective date assigned, that “would have no bearing
on the issue currently before the Court” because the effective date for
the appellant’s TDIU rating already predates “the 1993 attempt to reopen
the claim for an earlier effective date.” Secretary’s Br. at 13.

II. ANALYSIS
The determination of the effective date for an award of service
connection based on a reopened claim is governed by 38 U.S.C. 5110(a),
which provides:
Unless specifically provided otherwise in this chapter, the effective
date of an award based on . . . a claim reopened after final adjudication
. . . shall be fixed in accordance with the facts found, but shall not be
earlier than the date of receipt of application therefor.

See also 38 C.F.R. 3.400(q)(ii), (r) (2003). Under 38 C.F.R. 3.
157(a), a report of examination or hospitalization may be accepted as a
claim for benefits if it meets the requirements of 38 C.F.R. 3.157.
Pursuant to 38 C.F.R. 3.157(b), “[o]nce a formal claim for . . .
compensation has been allowed or a formal claim for compensation [has been]
disallowed for the reason that the service- connected disability [was] not
compensable in degree,” specified records “will be accepted as an informal
claim for increased benefits or an informal claim to reopen.” Section 3.
157(b)(1) provides, inter alia, that the date of admission or examination
at a VA hospital “will be accepted as the date of receipt of a claim.” 38
C.F.R. 3.157(b)(1).
In the instant case, the August 1994 BVA decision granting the
appellant an effective date of September 23, 1985, for his award of a
TDIU rating and denying an effective date prior thereto (see R. at 1536)
became final when it was not timely appealed. See R. at 1597; cf. Rosler
v. Derwinski, 1 Vet.App. 241, 249 (1991) (finality of BVA decision is
abated if motion for BVA reconsideration is filed within 120-day appeal
period). See generally Lapier v. Brown, 5 Vet.App. 215, 216-17 (1993) (
final BVA decision denying earlier effective date is previous and final
disallowance within meaning of 38 U.S.C. 5108). Because there are “only
two exceptions to the rule of finality,” the appellant was left with only
two means by which to overcome the finality of that decision: (1)
Reopening based on the presentation of new and material evidence or (2)
CUE. Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc).
Of the two, only the latter could conceivably result in an earlier
effective date for the award of his TDIU rating because it is well
established that the effective date for an award based on a claim to
reopen is the date of the claim to reopen. See Flash v. Brown, 8 Vet.App.
332, 340 (1995) (“[W]hen a claim to reopen is successful and the benefit
sought is awarded upon readjudication, the effective date is the date of
the claim to reopen.”); see also Sears v. Principi, 16 Vet.App. 244, 246-
50 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003). Because in the
instant case the appellant’s claim to reopen was filed in April 2000 and
because he already has been awarded an effective date of September 23,
1985, any such claim to reopen could not lead to an earlier effective date
. See Flash, supra; see also Sears, supra. Moreover, the instant appeal
is not predicated upon CUE, and it should be noted that the appellant
already has waged an unsuccessful CUE attack on the August 1994 Board
decision. R. at 1682, 1687. Put differently, to the extent that the
appellant suggests that there has been no prior final
disallowance of his claim for an earlier effective date, that argument is
unavailing (see Lapier, 5 Vet.App. at 216-17) and, even if he could show
that 38 U.S.C. 5108 is inapplicable, that argument does not provide a
basis for overcoming the finality of the August 1994 BVA decision as to
the proper effective date for his TDIU rating (see Cook, 318 F.3d at 1339).
The crux of the instant appeal appears to be, in essence, that VA
regulation 38 C.F.R. 3.157(b) creates some sort of a third exception to
the rule of finality that assertedly would allow for the appellant’s
earlier-effective-date claim to be reopened in the absence of new and
material evidence. See Appellant’s Br. at 16 (“Pursuant to [38 C.F.R.
3.157(b)], the [a]gency was required to reopen the issue of the [a]
ppellant’s entitlement to an earlier effective date. The regulation is
silent regarding the requirement to submit new and material evidence, and
the Board erred by imposing upon the [a]ppellant such a requirement.”).
The appellant cites to no authority for that proposition, and such an
argument flies in the face of a statutory scheme that clearly allows for
the reopening of a previously and finally disallowed claim exclusively
upon the production of new and material evidence. See 38 U.S.C. 7104(b
) (“Except as provided in section 5108 of this title, 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.”), 5108 (“If 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.”).
Moreover, even if the appellant were correct in his interpretation of 38 C.
F.R. 3.157(b), he has not demonstrated, as the Court has already noted,
how the application of that regulation would result in the award of an
effective date prior to September 23, 1985, for his rating of TDIU. In
this regard, the Court notes that, even if the appellant’s claim could be “
reopened” without the presentation of new and material evidence, as stated
above, the effective date for an award based upon that claim would be the
date of the claim to reopen-in this case, April 2000, nearly fifteen years
later than the current effective date of September 23, 1985. See Flash,
8 Vet.App. at 340 (“[W]hen a claim to reopen is successful and the benefit
sought is awarded upon readjudication, the effective date is the date of
the claim to reopen.”); see also Sears, 16 Vet.App. at 246-50.
With regard to the appellant’s second argument, the Court concludes
that, contrary to the appellant’s assertions, it is inconsequential that
his underlying claim was for an increased rating.
Specifically, the appellant has failed to demonstrate how the
application of 38 C.F.R. 3.400(o) could result in the award of an
effective date prior to September 1985 for the award of his TDIU rating.
See 38 C.F.R. 3.400(o) (effective date for increased compensation is “[e]
arliest date as of which it is factually ascertainable that an increase in
disability had occurred if claim is received within 1 year from such date
otherwise, date of receipt of claim”).
His third and final argument is also unavailing. The appellant, in
his April 1993 NOD, asserted that he “disagree[d] with [the RO’s January
1993] decision [to] award [him] a 70% evaluation for [his] service[-]
connected [o]rganic [b]rain [s]yndrome” and that “the medical evidence of
record clearly support[ed] a total evaluation for this condition effective
May 21, 1985.” R. at 1493. He now argues that the April 1993 NOD
expressed disagreement with the effective date and the rating assigned for
his award of service connection for organic brain syndrome and that the RO
failed to issue an SOC. Appellant’s Br. at 24-29. He fails to explain,
however, how that NOD constituted an expression of disagreement with the
effective date assigned considering that the RO already had assigned an
effective date of May 21, 1985, for his award of service connection for
organic brain syndrome. R. at 1462; see also 38 C.F.R. 20.201 (2003) (
NOD must “express[] dissatisfaction or disagreement” with an RO
determination). Moreover, even assuming that the April 1993 NOD had
expressed disagreement with the effective date assigned for the award of a
70% rating for the appellant’s organic brain syndrome and that the RO had
erred insofar as it failed to issue an SOC, the appellant has not
demonstrated how any such error would impact the issue on appeal-
entitlement to an effective date prior to September 23, 1985, for the
award of his TDIU rating. See U.S. Vet. App. R. 28(a)(5) (appellant’s
brief must contain “an argument . . . and the reasons for [them], with
citations to the authorities . . . relied on”). In conclusion, as
outlined above, because reopening of the appellant’s claim could not
result in an effective date earlier than the date of receipt of the
reopened claim, see Lapier, 5 Vet.App. at 216-17, the Court concludes that
the appellant has not demonstrated that the Board erred in concluding that
there was no legal basis for an earlier effective date for the award of
his TDIU rating. See Sabonis v. Brown, 6 Vet.App. 426, 429-30 (1994) (
where law and not evidence is dispositive, claim should be denied or
appeal terminated because of lack of legal merit or lack of entitlement
under law). Accordingly, the Court will affirm the decision on appeal.

III. CONCLUSION
Upon consideration of the foregoing, the parties’ pleadings, and the
record on appeal, the May 11, 2001, BVA decision is AFFIRMED.

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