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Donovan v. West

October 26, 1998

THOMAS R. DONOVAN, CLAIMANT-APPELLANT,
v.
TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Before Plager, Circuit Judge, Friedman, Senior Circuit Judge, and Rader, Circuit Judge.

The opinion of the court was delivered by: Friedman, Senior Circuit Judge.

Appealed from: United States Court of Veterans Appeals Judge Donald L. Ivers United States Court of Appeals for the Federal Circuit

This appeal presents a question about the meaning and effect of a regulation of the Department of Veterans Affairs (VA), 38 C.F.R. § 3.105(a) (1997), providing that otherwise final determinations of the agency's regional offices will be "reversed or amended" if there is "clear and unmistakable error." The appellant Donovan contends that under this provision he may challenge a final decision of the VA regional office denying his claim for a service-connected disability, despite an intervening decision of the VA Board of Veterans' Appeals that rejected his claim. The Court of Veterans Appeals denied Donovan's contention. We agree, and therefore affirm.

I.

The underlying facts are undisputed. Donovan served in the Army from 1941 to 1945. In1946 he applied to the VA (then known as the Veteran's Administration) for benefits for various disabilities, including "Stomach Condition," "Headaches," and "Nervous Condition." A July 1947 VA physical examination indicated that Donovan had gastric neurosis and psychoneurosis secondary to gastrointestinal disturbance.

In 1947, the VA regional office, where Donovan had filed his claim, denied the claim based on lack of "service responsibility for gastric neurosis and psychoneurosis." Donovan did not appeal that decision to the Board of Veterans' Appeals, and the decision became final one year later. See 38 U.S.C. § 7105(c) (1994). That provision further provides that "the claim will not thereafter be reopened or allowed, except as otherwise provided by regulations not inconsistent with this title." A VA regulation provides for reconsideration of such final claims if they involve "clear and unmistakable error." 38 C.F.R. § 3.105(a). In addition, the Secretary must reopen and review a claim if "new and material evidence is presented or secured." 38 U.S.C. § 5108 (1994).

Thirty-eight years later, in 1985, Donovan filed another claim for benefits, this time based on Delayed Post Traumatic Stress Disorder (Stress Disorder). After a VA psychiatric examination concluded that Donovan did not have that condition, the regional office denied the claim. This time Donovan appealed the denial to the Board of Veterans' Appeals.

The VA conducted another psychiatric examination, which also concluded that Donovan did not suffer from Stress Disorder. After a hearing, the Board in May 1988 held that "[e]ntitlement to service connection for a chronic acquired psychiatric disability, to include post-traumatic stress disorder, is not established," and denied the appeal. The Board noted that in 1947 Donovan had been "denied entitlement to service connection for gastric neurosis and a secondary psychoneurosis," that "[i]n 1985, the claim was reopened and was expanded to include consideration of entitlement to service connection for post-traumatic stress disorder," and that "the Board has reviewed the entire evidence of record and is making a de novo determination."

The Board stated that "[a] review of the service medical records reveals normal psychiatric status" and that in a VA 1947 examination: "[t]he veteran exhibited no asocial or psychotic trends. He displayed no particular tension or apprehension. He was primarily concerned with nausea and vomiting of several years' duration. The diagnoses were gastric neurosis and secondary psychoneurosis."

"The Board concluded: [t]he Board has carefully considered all the evidence of record and is mindful of the requirement that all reasonable doubt must result in favor of the veteran. While we do not doubt that the veteran experienced traumatic events during the war, the evidence since his discharge from service does not demonstrate that he has a psychiatric disorder, including post-traumatic stress disorder, as a result of that service. Two recent special psychiatric examinations found no psychiatric disorder."

The Board found that "[a] chronic acquired psychiatric disorder was not present during active service," and concluded that "[a] chronic acquired psychiatric disability, to include post-traumatic stress disorder, was not incurred in or aggravated by active service."

Donovan tried again in April 1991, this time with more success. He asserted that it was "clear and umistakable error to deny service connection" for his "chronic acquired psychiatric disability," in view of the "diagnosis of psychoneurosis" made in July 1947, the "complaints" shown by the record, and his "heroic achievement in connection with military operations against an enemy of the United States," for which he was awarded a bronze star.

Two VA psychiatric examinations then concluded that Donovan had Stress Disorder. The regional office reopened his claim-presumably because of this new and material evidence-and granted service connection for Stress Disorder with disability payments effective November 5, 1991.

Donovan then requested that the payments be made retroactive to July of 1947, "when the diagnosis of psychoneurosis was made." The regional office denied that request and Donovan appealed that ruling to the Board of Veterans' Appeals which, after an informal hearing, affirmed in 1995. The Board found that "[T]he claim of clear and unmistakable error in the August 4, 1947 RO denial of service ...


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