Veteranclaims’s Blog

July 17, 2018

FedCir; 35 C.F.R. § 3.156(c)(1); reconsideration of a “claim”; secondary service connection is not necessarily part of the primary claim for service connection; Manzanares v. Shulkin, 863 F.3d 1374, 1377–78 (Fed. Cir. 2017);

Excerpt from decision below:

“Section 3.156(c) provides for the reconsideration of a “claim.” 35 C.F.R. § 3.156(c)(1). A secondary service connection is not necessarily part of the primary claim for
service connection. Manzanares v. Shulkin, 863 F.3d 1374, 1377–78 (Fed. Cir. 2017).”

========================

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
______________________
PATRICK BRUNETTE,
Claimant-Appellant
v.
PETER O’ROURKE, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2017-2534
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-3377, Judge Mary J. Schoelen.
______________________
Decided: July 17, 2018
______________________
EDWARD AUSTIN ZIMMERMAN, Military & Veterans National
Law Center, Burnsville, MN, for claimantappellant.
JOSEPH ASHMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by
ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA PREHEIM,
CHAD A. READLER.
______________________
2 BRUNETTE v. O’ROURKE
Before PROST, Chief Judge, MOORE and REYNA, Circuit
Judges.
PER CURIAM.
Patrick Brunette appeals the U.S. Court of Appeals
for Veterans Claims’ determination that various claims
remanded by the Board of Veterans’ Appeals to the regional
office (“RO”) were not before it, and its affirmance
of the Board’s denial of an earlier effective date for the
award of service connection for depression. Because the
Veterans Court did not err in its determinations, we
affirm.
BACKGROUND
Mr. Brunette served in the United States Army from
March 1979 to March 1982, when he was medically discharged
from service due to a back condition. In
April 1982, he applied for disability compensation for
spondylolisthesis, a back condition. The RO denied the
claim in May 1982, finding spondylolisthesis was not a
disability under the law. Mr. Brunette did not appeal, but
in August 2004 he requested the Department of Veterans
Affairs reopen his claim, arguing the May 1982 rating
decision was the product of clear and unmistakable error
(“CUE”). In 2006, the RO awarded Mr. Brunette service
connection for spondylolisthesis, and in May 2012, the
Board determined that the May 1982 rating decision was
the result of CUE, finding additional service records that
were not before the adjudicators would have compelled a
manifestly different outcome. The Board further determined
that 38 C.F.R. § 3.156(c), which provides for the
reconsideration of a claim, applied because at the time of
the denial, the VA had received relevant service department
records that had not been associated with the claims
file. In November 2012, the RO granted a 10% disability
rating for Mr. Brunette’s back condition effective March
BRUNETTE v. O’ROURKE 3
25, 1982, and a 20% disability rating effective August 13,
2004.
On March 4, 2008, Mr. Brunette submitted a new
claim for depression secondary to his back condition.
Following a VA examination, he was diagnosed with a
depressive disorder. In June 2008, the RO granted service
connection for depression and assigned a 30% disability
rating effective March 4, 2008, which on review was
increased to 50%.
In November 2012, the RO continued the 50% disability
rating for depression and denied an earlier effective
date. Mr. Brunette filed a notice of disagreement asserting
his depression should be rated at 70% effective March
24, 1982. The RO awarded an increased disability rating
of 70% effective March 26, 2014.
In May 2015, the Board denied Mr. Brunette an earlier
effective date for depression. It determined the June
2008 decision of the RO setting the effective date had
become final. It determined there was no CUE in the
May 1982 rating decision because there was no communication
in 1982 that might be construed as a claim for
benefits for a psychiatric disability. The Board remanded
on the issues of: (1) entitlement to an increased rating for
depression; (2) entitlement to a higher initial rating for
spondylolisthesis; (3) entitlement to a total disability
rating based upon individual unemployability; and
(4) special monthly compensation by reason of being
housebound.
Mr. Brunette appealed to the Veterans Court. The
Veterans Court determined that the issues on which the
Board remanded were not before the Court and that Mr.
Brunette was not entitled to a 1982 effective date for
depression. Mr. Brunette timely appealed. We have
jurisdiction under 38 U.S.C. § 7292.
4 BRUNETTE v. O’ROURKE
DISCUSSION
Our jurisdiction to review Veterans Court decisions is
limited to “the validity of a decision of the Court on a rule
of law or of any statute or regulation . . . or any interpretation
thereof (other than a determination as to a factual
matter) that was relied on by the Court in making the
decision.” 38 U.S.C. § 7292(a). We review such legal
determinations de novo. Andre v. Principi, 301 F.3d 1354,
1358 (Fed. Cir. 2002). We may not review the Veterans
Court’s factual findings or its application of law to facts,
absent a constitutional issue. Singleton v. Shinseki, 659
F.3d 1332, 1334 (Fed. Cir. 2011).
We hold that the Veterans Court did not err in dismissing
the appeal as to the claims that the Board had
remanded for further development. Although Mr. Brunette
argues the Veterans Court may not remand under
38 U.S.C. § 7261, we see nothing in that section that
prevents the Board from remanding a case to an RO for
further development of the record. See 38 C.F.R. § 19.9
(“If further evidence, clarification of the evidence, correction
of a procedural defect, or any other action is essential
for a proper appellate decision, a Veterans Law Judge or
panel of Veterans Law Judges shall remand the case to
the agency of original jurisdiction, specifying the action to
be undertaken.”).
The Veterans Court also did not err in affirming the
Board’s decision denying Mr. Brunette an effective date
earlier than March 4, 2008, for service connection for
depression. Mr. Brunette argues the Veterans Court
erroneously concluded that the Board’s failure to apply 35
C.F.R. § 3.156(c) to his depression claim constituted
harmless error. He argues § 3.156(c) applies because at
the time of the May 1982 denial of the claim, the VA had
received service department records related to his lower
back claim but had not considered those records. According
to Mr. Brunette, § 3.156(c) requires that the entire
BRUNETTE v. O’ROURKE 5
1982 rating proceeding be reopened. He asserts that if
this is done, the VA must accept his testimony and that of
his friends and family regarding his symptoms of depression
in 1982.
Section 3.156(c) provides for the reconsideration of a
“claim.” 35 C.F.R. § 3.156(c)(1). A secondary service
connection is not necessarily part of the primary claim for
service connection. Manzanares v. Shulkin, 863 F.3d
1374, 1377–78 (Fed. Cir. 2017). Mr. Brunette concedes
that his 1982 claim was for spondylolisthesis and did not
include a claim for depression. Pursuant to § 3.156(c), the
Board’s May 2012 determination directing the reconsideration
of Mr. Brunette’s spondylolisthesis claim does not,
therefore, allow for introduction of evidence related to his
secondary claim for depression.
We have considered Mr. Brunette’s remaining arguments
and find them unpersuasive. We note that Mr.
Brunette expressly disavowed a claim based on CUE.
CONCLUSION
For the foregoing reasons, the decision of the Veterans
Court is affirmed.
AFFIRMED
COSTS
No costs.

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