Veteranclaims’s Blog

February 18, 2022

FedCir Application; We have previously determined that an appellant who “urged upon the Veterans Court the very standard that that court applied” forfeits any argument on appeal that the Veterans Court “committed reversible error” “when [it] applied that standard.” Logan v. Principi, 71 F. App’x 836, 838–39 (Fed. Cir. 2003); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (“[T]he fact that the appellant specifically urged the legal rule that he now challenges counsels against consideration of the issue.”). We accordingly conclude that Mr. Robinson forfeited his argument that the Veterans Court should have applied a de novo standard of review because Mr. Robinson had advocated for a clear-error standard of review in his briefing to the Veterans Court.;

Filed under: Uncategorized — veteranclaims @ 10:02 pm

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit


ROBERT E. ROBINSON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-1784


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-2296, Senior Judge Robert N.
Davis.


Decided: February 18, 2022


JOHN D. NILES, Carpenter Chartered, Topeka, KS, argued
for claimant-appellant. Also represented by JOHN F.
CAMERON, John F. Cameron, Attorney at Law, Montgomery,
AL.
ASHLEY AKERS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ELIZABETH
Case: 21-1784 Document: 38 Page: 1 Filed: 02/18/2022
2 ROBINSON v. MCDONOUGH
MARIE HOSFORD; CHRISTOPHER O. ADELOYE, BRIAN D.
GRIFFIN, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.


Before TARANTO, HUGHES, and STOLL, Circuit Judges.
HUGHES, Circuit Judge.
The Board of Veterans’ Appeals granted Robert E. Robinson
disability benefits with an effective date of May 2,

  1. Mr. Robinson appealed the Board’s effective-date determination,
    and the Court of Appeals for Veterans Claims
    affirmed. Mr. Robinson now appeals to us, arguing that the
    Veterans Court erred by incompletely applying the test for
    determining the law of the case and by applying the wrong
    standard of review in analyzing whether a document constitutes
    a decision. Because the Veterans Court articulated
    and applied the correct law-of-the-case test and because
    Mr. Robinson forfeited his standard-of-review argument,
    we affirm.
    I
    Mr. Robinson served in the Army from February to
    June 1974 and from October to November 1977. He filed a
    claim for disability compensation in December 1974 after
    experiencing shortness of breath, inability to concentrate,
    chills, nervousness, dizziness, and blackout spells. The Veterans
    Affairs regional office issued a rating decision denying
    Mr. Robinson’s application in July 1975, finding no
    service connection.
    Mr. Robinson then requested to reopen his application
    three times:
    First, in August 1979, Mr. Robinson filed a request to
    reopen his December 1974 application—although at that
    time Mr. Robinson characterized this request as his “first
    claim for VA compensation.” Appx104. The RO sent a letter
    in response, informing Mr. Robinson that he had
    Case: 21-1784 Document: 38 Page: 2 Filed: 02/18/2022
    ROBINSON v. MCDONOUGH 3
    previously applied for benefits in December 1974 and asking
    if he had additional information to submit. Mr. Robinson
    responded that he had never filed a claim and asked
    the RO to either provide evidence that he had filed a prior
    claim or to review his request on the merits. The RO then
    forwarded a copy of Mr. Robinson’s December 1974 application
    to Mr. Robinson. The record contains no further
    communications regarding this request to reopen.
    Second, in April 1980, Mr. Robinson filed a request to
    reopen his December 1974 application, indicating that his
    doctor had made new findings about Mr. Robinson’s mental
    health. The RO sent a letter to Mr. Robinson’s doctor, requesting
    additional information. Mr. Robinson’s doctor responded
    with an evaluation of Mr. Robinson’s mental
    health. The RO, considering this evidence, determined that
    the evidence did not alter the validity of the RO’s previous
    denial.
    Third, in May 1992, Mr. Robinson again filed a request
    to reopen his December 1974 application. The RO denied
    his claim, determining that the evidence received was not
    new or material to establish service connection. Mr. Robinson
    appealed, and his case went back and forth between
    the Board of Veterans’ Appeals and the Veterans Court for
    several years. Relevant to this appeal, the Board in 1997
    affirmed an RO rating decision that denied Mr. Robinson’s
    third request to reopen for failure to submit new evidence.
    The Veterans Court vacated and remanded the 1997 Board
    decision on appeal in light of new precedent from our court.
    Finally, in July 2011, the Board granted Mr. Robinson
    service connection for schizophrenia and basic eligibility
    for Dependents’ Educational Assistance. The Board assigned
    an effective date of May 2, 1992 for both entitlements,
    corresponding to the date that Mr. Robinson filed
    his third request to reopen. Mr. Robinson disagreed with
    and challenged the Board’s effective-date determination.
    Case: 21-1784 Document: 38 Page: 3 Filed: 02/18/2022
    4 ROBINSON v. MCDONOUGH
    The Veterans Court affirmed. Mr. Robinson now appeals to
    us.
    II
    We analyze de novo the Veterans Court’s interpretation
    of law. Bazalo v. West, 150 F.3d 1380, 1382 (Fed. Cir.
    1998). And we cannot review challenges to factual determinations
    or applications of law to facts. 38 U.S.C.
    § 7292(d)(2).
    A
    Mr. Robinson first argues that the Veterans Court
    erred in its analysis of the law-of-the-case doctrine because
    the court ignored part of the doctrine. Under the law-ofthe-
    case doctrine, courts generally refuse to reconsider
    questions of law and fact that have already been decided
    during litigation to “prevent relitigation of issues.” Suel v.
    Sec’y of Health & Hum. Servs., 192 F.3d 981, 984–85 (Fed.
    Cir. 1999); see Means v. Brown, 9 Vet. App. 482, 483 (1996)
    (applying the doctrine to a Board decision). The doctrine
    extends to both explicit findings and “things decided by
    necessary implication.” Smith Int’l, Inc. v. Hughes Tool Co.,
    759 F.2d 1572, 1577 (Fed. Cir. 1985) (cleaned up). But the
    law-of-the-case doctrine is not absolute. For example, a
    trial court is free to reexamine findings on remand that are
    “not examined in, relied on, or otherwise necessary to” the
    corresponding appellate decision. Exxon Corp. v. United
    States, 931 F.2d 874, 878 (Fed. Cir. 1991).
    The Board, in its 1997 decision, referred to the RO’s
    first rating decision in 1975 as “the last final rating decision
    denying service connection for a psychiatric disorder.”
    Appx64. Mr. Robinson asserts that this is a fact finding to
    which the Board and the Veterans Court are now bound
    under the law-of-the-case doctrine. If the 1975 rating decision
    is the “last final” denial of Mr. Robinson’s claim, then,
    by implication, Mr. Robinson’s subsequent requests to reopen
    were never finally denied and are still pending. The
    Case: 21-1784 Document: 38 Page: 4 Filed: 02/18/2022
    ROBINSON v. MCDONOUGH 5
    Board could, under this theory, award Mr. Robinson an effective
    date as early as August 10, 1979—the date of his
    first request to reopen. See 38 U.S.C. § 5110(a)(1) (“[T]he
    effective date of an award . . . shall not be earlier than the
    date of receipt of application therefor.”); 38 C.F.R.
    § 3.400(r) (setting the effective date for reopened claims as
    the “[d]ate of receipt of [the] claim”).
    The Board and Veterans Court both rejected this argument.
    The Board determined that the 1997 decision is, “at
    best, ambiguous as to whether the last final denial was in
    1975 or 1980.” Appx25. The Board further determined that
    the Veterans Court, in a 2000 decision on appeal from the
    Board’s 1997 decision, had analyzed an entirely separate
    issue and “did not reach the question of which RO decision
    was the last final rating decision.” Appx25. Because the
    Board in its 1997 decision did not appear to have made the
    alleged factual finding and because—even if the Board did
    so find—the Veterans Court in 2000 did not consider or rely
    on that alleged finding on appeal, the Board concluded that
    the law-of-the-case doctrine does not apply. The Board then
    determined that the last final denial actually occurred in
    May 1980, in response to Mr. Robinson’s second request to
    reopen. Appx25.
    The Veterans Court affirmed the Board’s conclusion,
    discerning no error in the Board’s analysis. The Veterans
    Court articulated the correct law-of-the-case standard, analyzed
    the facts of the case, determined that “the Court in
    2000 [had] not specifically identif[ied] the last final rating
    decision,” and concluded that “it was not an error for the
    Board to find the last final denial was the May 1980 rating
    decision.” Appx3–4.
    Mr. Robinson argues that the Veterans Court erred because
    it considered only whether the previous decisions
    “specifically identif[ied]” or “expressly contemplate[d]” the
    alleged factual finding. Appellant’s Br. 15; Appx4. Mr. Robinson
    asserts that the law-of-the-case doctrine
    Case: 21-1784 Document: 38 Page: 5 Filed: 02/18/2022
    6 ROBINSON v. MCDONOUGH
    “comprehends things decided by necessary implication as
    well as those decided explicitly.” Appellant’s Br. 12 (quoting
    Smith Int’l, 759 F.2d at 1577 (emphasis added)). According
    to Mr. Robinson, the Veterans Court did not
    “assess[] law of the case in the light of what the Board and
    the Veterans Court actually decided—whether explicitly or
    by necessary implication.” Appellant’s Br. 12.
    We disagree. The Veterans Court articulated the correct
    standard, recognizing that it is “without power to do
    anything which is contrary to either the letter or spirit of
    the mandate construed in light of the opinion of the court
    deciding the case.” Appx3 (emphasis added) (quoting
    Browder v. Brown, 5 Vet. App. 268, 270 (1993)). And while
    the Veterans Court did discuss what the 1997 Board decision
    and 2000 Veterans Court decision specifically identified
    and expressly contemplated, nothing in the Veterans
    Court’s discussion indicates that it limited its analysis to
    those express findings or otherwise impermissibly narrowed
    the doctrine. In fact, the Veterans Court emphasized
    that the 1997 decision “when read [i]s, at best, ambiguous
    as to whether the last final denial was in 1975 or 1980,”
    indicating that it analyzed the decision holistically. Appx4
    (quoting Appx25).
    To the extent that Mr. Robinson argues to us that the
    1997 decision and subsequent appellate decision explicitly
    or implicitly found that the 1975 rating decision is his last
    final denial, that is an application of law to fact that we
    cannot review. 38 U.S.C. § 7292(d)(2). Therefore, we affirm
    the Veterans Court’s law-of-the-case conclusion.
    B
    Mr. Robinson next argues that the Veterans Court applied
    the wrong standard of review in determining whether
    a letter from the RO constitutes a rating decision.
    In August 1979, Mr. Robinson filed his first request to
    reopen his claim for disability benefits. The RO responded
    Case: 21-1784 Document: 38 Page: 6 Filed: 02/18/2022
    ROBINSON v. MCDONOUGH 7
    in September 1979, informing Mr. Robinson that he had
    previously filed an application for benefits that had been
    denied, asking Mr. Robinson if he had acquired additional
    evidence, and attaching a Notice of Procedural and Appellate
    Rights. Mr. Robinson asserts that this RO letter is a
    rating decision. A few days after receiving the RO letter,
    Mr. Robinson responded, stating that he had not previously
    filed an application and requesting that the Board
    provide evidence that he had filed such an application.
    Mr. Robinson asserts that his response constitutes a Notice
    of Disagreement that triggered the Board’s duty to issue a
    statement of the case. See 38 U.S.C. § 4005(d) (1976)1; Collaro
    v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998) (“Once
    the agency receives a claimant’s NOD, . . . [t]he agency
    must prepare a statement of the case.”). Because the Board
    never issued a statement of the case as it was required to
    do, Mr. Robinson argues that his 1979 request to reopen is
    still pending and that the Board could therefore award him
    an earlier effective date.
    The Board disagreed with Mr. Robinson, concluding
    that the RO letter is not a decision and that Mr. Robinson’s
    response is not a Notice of Disagreement. Appx23–24. And
    the Veterans Court determined that the Board “did not
    clearly err in finding that the [RO letter] was not a decision.”
    Appx4. Mr. Robinson alleges that the Veterans Court
    erred in analyzing this issue for clear error rather than de
    novo.2
    1 This provision was later renumbered to § 7105.
    Pub. L. No. 102-40, § 402(b)(1), 105 Stat. 187, 238 (1991).
    And has since been amended. Pub. L. No. 115-55,
    § 2(q)(1)(D), 131 Stat. 1105, 1112 (2017).
    2 The Veterans Court has held that “[w]hether a document
    is an NOD is a question of law for the Court to determine
    de novo.” Beryle v. Brown, 9 Vet. App. 24, 28
    Case: 21-1784 Document: 38 Page: 7 Filed: 02/18/2022
    8 ROBINSON v. MCDONOUGH
    Importantly, Mr. Robinson argued for a clear-error
    standard of review in his briefing before the Veterans
    Court. See Appx155 (“[T]he Board made the clearly erroneous
    finding that the September 1979 VA document was not
    a decision.” (emphasis added)). We have previously determined
    that an appellant who “urged upon the Veterans
    Court the very standard that that court applied” forfeits
    any argument on appeal that the Veterans Court “committed
    reversible error” “when [it] applied that standard.” Logan
    v. Principi, 71 F. App’x 836, 838–39 (Fed. Cir. 2003);
    see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir.
    2002) (en banc) (“[T]he fact that the appellant specifically
    urged the legal rule that he now challenges counsels
    against consideration of the issue.”). We accordingly conclude
    that Mr. Robinson forfeited his argument that the
    Veterans Court should have applied a de novo standard of
    review because Mr. Robinson had advocated for a clear-error
    standard of review in his briefing to the Veterans Court.

    Therefore, we affirm the Veterans Court’s conclusion that
    the RO letter is not a decision and that Mr. Robinson’s response
    is not a Notice of Disagreement.
    (1996). But neither Mr. Robinson nor the government cites
    to an opinion that explicitly identifies the standard of review
    for whether a document is a rating decision. See Oral
    Arg. at 21:48–22:22, https://oralarguments.cafc.uscourts.
    gov/default.aspx?fl=21-1784_02072022.mp3 (“I am not
    aware of any case law that specifically identifies criteria or
    a test to make that determination.”). Although both parties
    contend that the standard of review is also de novo, Appellant’s
    Br. 17; Oral Arg. at 20:37–21:47, we do not need to
    decide what the appropriate standard of review is to reach
    our conclusion, so we leave this issue open.
    Case: 21-1784 Document: 38 Page: 8 Filed: 02/18/2022
    ROBINSON v. MCDONOUGH 9
    III
    For the reasons above, we affirm the Veterans Court’s
    decision.
    AFFIRMED
    No costs.
    Case: 21-1784 Document: 38 Page: 9 Filed: 02/18/2022

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