Topic: Retroactive benefits question
Conf: Claims/Research, Msg: 31058
From: Deleted User
Date: 8/13/2002 03:49 AM

What VA form and wording would a vet submit if they 
were denied retroactive benefits?

"I was denied retroactive benefits to the date of my original 
claim for benefits by the BVA, even though I demonstrated and 
stated I was unemployable since the time of my discharge, and 
all appeals and notices of disagreements were found to be timely. 
Please refer to the CAVC’s decision, Roberson v. Principi.

I met all the requirements of the VA's General Council 
ruling "July 6, 2001 VAOPGCPREC___12-2001" at 
Memo PRC 12-1201 Reprint (Below), in my original application 
for benefits and C&P exam;

   "1. Once a veteran: (1) submits evidence of a medical 
   disability; (2) makes a claim for the highest rating possible; 
   and (3) submits evidence of unemployability, the requirement 
   in 38 C.F.R. § 3.155(a) that an informal claim “identify the 
   benefit sought” has been satisfied and VA must consider 
   whether the veteran is entitled to total disability based 
   upon individual unemployability (TDIU). 

   2. A veteran is not required to submit proof that he or she 
   is 100% unemployable in order to establish an inability to 
   maintain a substantially gainful occupation, as required 
   for a TDIU award pursuant to 38 C.F.R. § 3. 340(a)."

   Please examine my case for any errors."

Should I include any other supporting documentation or 
wording?

[CFR/USC Reference Summary]

CFR Title 38 References

§ 3.105  Revision of decisions.

§ 3.155  Informal claims.

§ 3.156  New and material evidence.

§ 4.16  Total disability ratings for compensation
          based on unemployability of the individual.

§ 4.17  Total disability ratings for pension
          based on unemployability and age of the individual.   

§ 4.18  Unemployability

    Entire Excerpts Part 3     Entire Excerpts Part 4

Note:  CFR References to § 4.xxx is based upon "Schedule for 
Rating Disabilities" where most, if not all, the memo below 
references is for § 3.xxx which is "Adjudication."  Imho, 
§ 4.xxx sheds more "light" on the issue, ie, based on age, 
for instance.  "Adjudication .. the cows have already left
the barn..."


U.S.C. References of Title 38

CHAPTER 5  -  AUTHORITY AND DUTIES OF THE SECRETARY

Specific Sections re in Chapter 5

§ 501   Rules and regulations

CHAPTER 51 - CLAIMS, EFFECTIVE DATES, AND PAYMENTS 

Specific Sections re in Chapter 51

§ 5107  Claimant responsibility; benefit of the doubt

§ 5108  Reopening disallowed claims

§ 5109  Independent medical opinions


  
Reprint of VA Memo PRC 12-1201



Department of			Memorandum
Veterans Affairs
Date:	July 6, 2001		VAOPGCPREC___12-2001

From:	General Counsel (022)

Sub:	Roberson v. Principi, No. 00-7009, 2001 

U.S. App. LEXIS 11008 (Fed. Cir. May 29, 2001)

To:	Chairman, Board of Veterans' Appeals (01)
Under Secretary for Benefits (20)

QUESTION PRESENTED:

What did the United States Court of Appeals for the Federal 
Circuit hold in Roberson v. Principi, No. 00-7009, 2001 U.S. 
App. LEXIS 11008 (Fed. Cir. May 29, 2001)?

COMMENTS:

1.  On May 29, 2001, the United States Court of Appeals for the 
Federal Circuit issued Howard F. Roberson v. Anthony J. Principi, 
Secretary of Veterans Affairs, No. 00-7009, 2001 U.S. App. LEXIS 
11008 (Fed. Cir. May 29, 2001).  Mr. Roberson appealed a July 27, 
1999, decision of the United States Court of Appeals for Veterans 
Claims (CAVC), Howard F. Roberson v. Togo D. West, Jr., Secretary 
of Veterans Affairs, Vet. App. No. 97-1971, 1999 U.S. App. Vet. 
Claims LEXIS 997 (CAVC July 27, 1999).  The CAVC's decision 
affirmed the July 7, 1997, decision of the Board of Veterans' 
Appeals (Board) that determined that there was no clear and 
unmistakable error (CUE) in a 1984 regional office decision 
that established service connection for post-traumatic stress 
disorder and assigned a 70% disability rating.  The CAVC concluded 
that there was "ample evidence contained" in the record before the 
regional office in January 1984 to "reasonably conclude" that 
Mr. Roberson was not unemployable.  Roberson, 1999 U.S. Vet. Claims 
LEXIS 997, at *10.  The CAVC found that, although Mr. Roberson's 
condition seemed to impair his ability to remain gainfully employed, 
there was sufficient evidence of record at the time of the regional 
office decision to reasonably conclude that he was not 100% 
unemployable.  Id., at *11.  The CAVC further found that, if the 
regional office had applied 38 C.F.R. § 3.340, "it is not clear that 
the outcome of the January 1984 decision would have been manifestly 
different," and therefore rejected Mr. Roberson's argument that his 
100% rating in October 1990 is evidence that the January 1984 
regional office decision contained CUE.  Id., at *11-12.  With 
regard to Mr. Roberson's contention that VA erred pursuant to 
38 C.F.R. § 3.155(a), the CAVC stated that a claimant is still 
required, even in an informal claim, to communicate a request that 
a determination of entitlement be made or communicate a belief of 
entitlement, which Mr. Roberson did not do.  Id., at *12-13.  The 
CAVC concluded, that, as a result, there was no claim for total 
disability based upon individual unemployability (TDIU) before the 
regional office at the time of its January 1984 decision.  Id., 
at *13.  

2.  On appeal to the Federal Circuit, Mr. Roberson argued for 
the first time that VA violated its duty to assist pursuant to 
former 38 U.S.C. § 5107(a) by failing to conclude, based upon a 
liberal reading of the record in his case, that there was evidence 
to support a claim for TDIU.  Roberson, 2001 U.S. App. LEXIS 11008, 
at *12-13.  Mr. Roberson also argued that the CAVC misinterpreted 
38 C.F.R. § 3.155(a) by concluding that there was no claim for 
TDIU before the regional office in 1984.  Id., at *13.  Finally, 
Mr. Roberson argued that the CAVC misinterpreted 38 C.F.R. 
§ 3.340(a) by finding that he "was not 100% unemployable" in 
January 1984.  Id., at *15.

3.  Obviously, because in adjudicating similar cases VA is 
bound by the Federal Circuit's holdings rendered in precedent 
decisions like Roberson, it is important that those holdings be 
accurately identified for VA personnel adjudicating claims. In 
Roberson, two holdings are clear.  First, the Court held that once 
a veteran:  (1) submits evidence of a medical disability; (2) makes 
a claim for the highest rating possible; and (3) submits evidence 
of unemployability, the re-quirement in 38 C.F.R. § 3.155(a) that 
an informal claim "identify the benefit sought" has been satisfied 
and VA must consider whether the veteran is entitled to TDIU.  
Id., at *1-2 and *14.  Second, the Federal Circuit held in Roberson 
that a veteran does not have to prove that he or she is 
100% unemployable in order to establish an inability to maintain a 
substantially gainful occupation, as required for a TDIU award 
pursuant to 38 C.F.R. § 3.340(a).  Id., at *2 and *16.  Other 
portions of the Court's precedential decision are complex, and in 
order to avoid inconsistent decisionmaking by VA, we are providing 
the following analysis of the statements made in the Court's 
opinion to guide future adjudications.

4.  Court's Statement that VA Has a Duty to Fully and 
Sympathetically Develop a Veteran's Claim:  The Federal Circuit 
stated in Roberson, 2001 U.S.  App. LEXIS 11008, at *13, that VA 
has a duty to fully and sympathetically develop a veteran's claim 
to its optimum before deciding it on the merits.  The Court's 
statement regarding application of the duty to develop to CUE 
claims is inconsistent with at least one other Federal Circuit 
decision.  As such it cannot and should not be interpreted to 
require VA to develop evidence to support a CUE claim.  The 
Federal Circuit has previously held that a CUE claim must be 
based on the evidence in the record when the previous decision 
was rendered.  Pierce v. Principi 240 F.3d 1348, 1353 (Fed. Cir. 
2001); see also Disabled Am. Veterans v. Gober, 234 F.3d 682, 
697 (Fed. Cir. 2000) (upholding 38 C.F.R. § 20.1403(a) 
pertaining to revision of Board decisions based on CUE).  
Obviously, the duty to develop a CUE claim discussed in Roberson 
is inconsistent with the Pierce holding, which was not 
distinguished or otherwise mentioned by the Roberson Court.  
Moreover, we do not believe that this statement in Rober-son 
should be interpreted as providing that failure of the duty to 
develop is a basis for finding CUE.  The Federal Circuit did not 
identify any statute or regu-lation as the source of a duty to 
fully develop, and we are unaware of any statutory or regulatory 
basis for this duty.  Because there is no statutory or 
regulatory basis cited by the Court for the duty to develop, 
VA could not have incorrectly applied a "law" and thereby 
generated a CUE in the 1984 decision.  Accordingly, a breach of 
any "duty to develop" cannot be a basis for finding CUE in a 
prior claim decision.  Cf. Hayre v. v. West, 188 F.3d 1327, 
1332-33 (Fed. Cir. 1999) (breach of duty to assist is not CUE); 
Disabled Am. Veterans, 234 F.3d at 697 (upholding 38 C.F.R. 
§ 20.1403(d)(2) stating that Secretary's failure to fulfill duty 
to assist is not basis for finding of CUE in Board decisions).  

5.  Court's Statement that Congress Has Mandated that VA Is To 
Fully and Sympathetically Develop the Veteran's Claim to Its 
Optimum:  In Roberson, 2001 U.S. App. LEXIS 11008, at *14, the 
Federal Circuit cited the legislative history of the Veterans 
Judicial Review Act (VJRA), Pub. L. No. 100-687, Div. A, 102 
Stat. 4105, 4122 (1988) in support of its statement that Congress 
has mandated that VA is to fully and sympathetically develop a 
veteran's claim.  See Norris v. West, 12 Vet. App. 413, 420 
(1999).  Further the Court stated that this "duty to fully 
develop" is separate from VA's duty to assist in developing the 
facts pertinent to a claim under former 38 U.S.C. § 5107(a).  
Roberson, 2001 U.S. App. LEXIS 11008, at *13.  The legislative 
history cited by the Federal Circuit refers to VA's duty to 
assist in the development of facts pursuant to former 
38 U.S.C. § 5107(a).  Thus, H.R. Rep. No. 100-963, at 13 (1988), 
re-printed in 1988 U.S.C.C.A.N. 5782, 5794-95, states in 
pertinent part:

Implicit in such a beneficial system has been an evolution of a 
completely ex-parte system of adjudication in which Congress expects 
[the DVA] to fully and sympathetically develop the veteran's claim 
to its optimum before deciding it on the merits.  Even then, [the 
DVA] is expected to resolve all issues by giving the claimant the 
benefit of any reasonable doubt.  

The juxtaposition of the sentence regarding the reasonable-doubt 
doctrine with the preceding statement in the House report does not 
support the Court's conclusion that the duty to fully develop is 
distinct from the duty to assist.  Rather, the fact that the 
reasonable doubt doctrine is found in 38 U.S.C. § 5107(b), and the 
duty to assist provision was contained in former 38 U.S.C. § 5107(a), 
sup-ports the view that the duty to fully develop to which Congress 
referred in this report is in fact VA's duty to assist.  

6.  Court's Statement that VA Is Required to Consider a CUE Claim 
Using the Hodge Standard:  In Roberson, 2001 U.S. App. LEXIS 11008, 
at *13-14, the Federal Circuit stated that in Hodge v. West, 155 
F.3d 1356 (Fed. Cir. 1998), which concerned a claim to reopen a 
previously disallowed claim based on new and material evidence 
pursuant to 38 U.S.C. § 5108, the Court determined that Congress 
has mandated that VA has a "duty to develop" a claim to its optimum.  
Based on this analysis of the Hodge decision, the Court stated that 
VA is required to consider a CUE claim using the Hodge standard.  
Roberson, 2001 U.S. App. LEXIS 11008, at *14.  The Federal Circuit's 
statement regarding application of the Hodge standard to CUE claims 
is not supported by the Court's actual holding in Hodge.  Hodge dealt 
with a claim to reopen a VA decision based on new and material 
evidence pursuant to 38 U.S.C. § 5108, but the Federal Circuit did 
not hold in Hodge that VA has a duty to fully develop claims filed 
pursuant to 38 U.S.C. § 5108.  Rather, the Court, citing the 
legislative history of the VJRA, which is cited in Roberson, 
concluded that the standard for "materiality" adopted by the CAVC in 
Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991)  "imposed on 
veterans a requirement inconsistent with the general character of 
the underlying statutory scheme for awarding veterans' benefits."  
Hodge, 155 F.3d at 1362.  Thus, the predicate for the Federal 
Circuit's conclusion in Roberson that VA has a duty to develop CUE 
claims, which is based on Hodge, is inapposite.

7.  Court's Statement that It Sees No Basis for Applying a Standard 
Different Than Hodge to a CUE Claim:  The Federal Circuit also stated 
that it could "see no basis for applying a different standard to a 
CUE claim" than to a claim to reopen based on new and material 
evidence.  Roberson, 2001 U.S. App. LEXIS 11008, at *14.  Claims 
based on new and material evidence, however, are separate and 
distinct from CUE claims, and as a result, there are several reasons 
for applying different standards to CUE claims.   In order to reopen 
a disallowed claim pursuant to 38 U.S.C. § 5108, a claimant must 
submit new and material evidence.  New evidence is evidence that was 
not previously submitted to VA.  38 C.F.R. § 3.156(a).  Material 
evidence is evidence that bears directly and substantially upon the 
issue at hand and "which by itself or in connection with evidence 
previously assembled is so significant that it must be considered in 
order to fairly decide the merits of the claim."  Id.  In order to 
collaterally attack a decision pursuant to 38 U.S.C. § 5109A and 
7111, on the other hand, a claimant must show that there was an 
outcome -determinative error in a previous claim decision.  Bustos, 
179 F.3d at 1381; 38 C.F.R. § 20.1403(a).  As explained above, a 
finding of CUE is based on the evidence in the record and the law at 
the time when the challenged decision was made.  Pierce, 240 F.3d 
at 1353; 38 C.F.R. § 20.1403(a).  Because a finding of CUE must be 
based on the evidence in the record at the time of the challenged 
decision, unlike a finding of new and material evidence, VA does not 
have a "duty to develop" a claim alleging CUE because there is 
nothing further that could be developed.  The record is closed.  
Also, the Federal Circuit has recognized that a claim collaterally 
attacking an otherwise final decision is completely different from 
an original claim for benefits, and that, in such a collateral 
attack, a claimant has the burden of proof.  The Federal Circuit 
indicated in Hodge, 155 F.3d at 1363-64, that a claimant bears the 
burden of submitting evidence sufficient to reopen a previously 
decided claim under section 5108, and in Bustos v. West, 179 F.3d 
1378, 1381 (Fed. Cir.), cert. denied, 528 U.S. 967 (1999), the Court 
held that, in order to establish CUE, "the claimant must show that 
an outcome -determinative error occurred" with regard to the prior 
adjudication.  Similarly, we believe that a "duty to develop" would 
not be applicable to a CUE claim because, as explained above, a CUE 
determination is based on the record as it existed when the claim 
was originally adjudicated, and it is a claimant who carries the 
burden of proving that VA committed a CUE in the prior decision.

8.  Roberson Does Not Find CUE in the 1984 Regional Office Decision:  
Pursuant to 38 U.S.C. § 5109A and 38 C.F.R. § 3.105(a), a VA decision 
may be revised based upon CUE to reflect the "true" state of the facts 
or law that existed at the time the original decision was rendered.  
Russell v. Principi, 3 Vet. App. 310, 313 (1992).  Although the 
Federal Circuit found errors in the CAVC's decision, it did not 
identify any error made by VA with regard to the facts or law in the 
1984 regional office decision, nor does the opinion refer to any 
"error" as CUE.  Therefore, we do not believe that the Federal 
Circuit held that VA committed a CUE in adjudicating Mr. Roberson's 
claim in 1984.

9.  Because we do not believe there was a CUE in the 1984 VA decision, 
we recognize the Federal Circuit's failure in Roberson to identify a 
CUE in that decision results in uncertainty as to the basis for 
challenging the 1984 decision.  We do not believe, however, that the 
Federal Circuit found a nonstatutorily-authorized basis for reopening 
a previously decided claim based upon breach of the duty to fully 
develop.  The Court specifically stated that "Roberson's [original 
service-connection] claim has been finally decided by the RO."   
Roberson, 2001 U.S. App. LEXIS 11008, at *12.  In addition, such a 
holding would be inconsistent with principles of finality which the 
Federal Circuit has acknowledged in several decisions.  Disabled Am. 
Veterans, 234 F.3d at 702; Dittrich v. West, 163 F.3d 1349, 1351 
(Fed. Cir. 1998), cert. denied, 526 U.S. 1088 (1999); Routen v. West, 
142 F.3d 1434, 1437 (Fed. Cir.), cert. denied, 525 U.S. 962 (1998); 
Smith v. Brown, 35 F.3d 1516, 1520-21 (Fed. Cir. 1994); Spencer 
v. Brown, 17 F.3d 368, 371-72 (Fed. Cir.), cert. denied, 513 U.S. 810 
(1994).  "When an administrative agency is acting in a judicial 
capacity and re-solves disputed issues of fact before it which the 
parties have had an adequate opportunity to litigate, the courts have 
not hesitated to apply res judicata to en-force repose."  United 
States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966); see 
also Restatement (Second) of Judgments § 83 (1982).  The Federal 
Circuit has recognized that basic principles of finality and res 
judicata apply to VA decisions which have not been appealed.  Routen, 
142 F.3d  at 1437.  The Court has stated that, "[u]nless otherwise 
provided by law, the cases are closed and the matter is thus ended."  
Id. at 1438.  As recognized by the Fed-eral Circuit in Routen, there 
are currently only two statutorily-authorized means for reopening a 
finally decided VA benefit claim.  Such a claim may be re-opened 
based upon a showing of clear and unmistakable error in a prior 
decision by the Secretary or Board under 38 U.S.C. §§ 5109A and 
7111, or based upon new and material evidence pursuant to 38 U.S.C. 
§ 5108.  The Federal Circuit has also held that, "under appropriate 
circumstances an intervening change in the applicable law may 
entitle a veteran to receive consideration of a claim, even though 
the claim is based on essentially the same facts as those in a 
previously adjudicated claim."  Routen, 142 F.3d at 1438.  This 
exception, however, is grounded on the theory that the subsequent 
claim is essentially a new claim, not a request for reconsideration 
of a previously disallowed claim.  Routen, 142 F.3d at 1438; 
Spencer, 17 F.3d at 372-73.  Inasmuch as there is no other 
statutory provision authorizing review of a previous claim decision, 
we do not believe that the Federal Circuit held in Roberson that 
failure of a "duty to fully develop" provides a basis for vitiating 
a final VA decision.  Compare Hix v. Gober, 225 F.3d 1377, 1380 
(Fed. Cir. 2000) (38 U.S.C. § 1311 requires reex-amination of final 
rating decisions to determine survivor's entitlement to de-pendency 
and indemnity compensation).  

HELD:

The only holdings in Roberson v. Principi, No. 00-7009, 
2001 U.S. App. LEXIS 11008 (Fed. Cir. May 29, 2001) are the 
following:

1.	Once a veteran:  (1) submits evidence of a medical 
disability; (2) makes a claim for the highest rating possible; 
and (3) submits evidence of unemployability, the requirement 
in 38 C.F.R. § 3.155(a) that an informal claim "identify the 
benefit sought" has been satisfied and VA must consider whether 
the veteran is entitled to total disability based upon 
individual unemployability (TDIU).  

2.	A veteran is not required to submit proof that he or she 
is 100% unemployable in order to establish an inability to 
maintain a substantially gainful occupation, as required for 
a TDIU award pursuant to 38 C.F.R. § 3.340(a).  


Tim S. McClain