U.S. Court of Appeals, Federal Circuit
January 22, 1999
JAMES B. GILES, CLAIMANT-APPELLANT,
TOGO D. WEST, JR. SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.
Before Clevenger, Schall and Bryson, Circuit Judges.
The opinion of the court was delivered by: Clevenger, Circuit Judge.
NOTE: Pursuant to Fed. Cir., R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
James B. Giles appeals from the March 20, 1998, decision of the United States Court of Veterans Appeals, holding that Mr. Giles had failed, as a matter of fact, to prove that he had displayed manifestations of a psychosis within one year following his first discharge from service. Such failure of proof means that his claim for service connection for an acquired psychiatric disorder fails. We have jurisdiction to hear Mr. Giles's appeal under 38 U.S.C. § 7292. For the reasons set forth below, we vacate the decision of the Court of Veterans Appeals and remand the case for further proceedings consistent with this opinion.
Mr. Giles first served in the U.S. Army from August 1973 to August 1976. He then reenlisted in the Army from November 1977 until April 1978. Since June 1989, Mr. Giles has sought disability compensation for an acquired psychiatric disorder. In order for his claim to succeed, Mr. Giles must prove that he displayed manifestations of a psychosis, present to a degree of 10 percent or more, within one year following his first discharge from service. Mr. Giles's initial application for relief was denied by the regional office, and the denial was affirmed by the Board of Veteran's Appeals (BVA). The Court of Veterans Appeals, however, faulted the BVA for failure to consider adequately Mr. Giles's contention that he had demonstrated the required manifestations of psychosis, and therefore remanded the case to the BVA. The BVA in turn remanded the case to the regional office to develop further the evidence in Mr. Giles's case. The regional office, however, again denied Mr. Giles's claim, and that decision was affirmed by the BVA.
In his brief to the Court of Veterans Appeals, Mr. Giles argued that his claim is well-grounded, and that he therefore is entitled to assistance from the Secretary. See 38 U.S.C. § 5107(a) (1994) (when a claim is well-grounded, the Secretary must "assist such a claimant in developing the facts pertinent to the claim"). In particular, he argued that the duty to assist included provision of an independent medical examination of certain events that occurred in the one year following his first discharge from service. Mr. Giles contends that with such assistance, his record will satisfy the requirements for the compensation he seeks.
Rather than address Mr. Giles's contention that his claim is well-grounded and thus legally deserving of assistance, the Court of Veterans Appeals reviewed the facts of record and concluded that on those facts the BVA had not clearly erred in denying Mr. Giles's claim to compensation.
On appeal to this court, Mr. Giles argues that the Court of Veterans Appeals applied the wrong standard of review to his appeal to that court. In a nutshell, Mr. Giles argues that the Court of Veterans Appeals erred, as a matter of law, in applying the clearly erroneous standard of review, found in 38 U.S.C. § 7261(a)(4), instead of the nondeferential standard of review for legal questions set forth in 38 U.S.C. § 7261(a)(1) and (a)(3)(D). Mr. Giles thus presents this court with a question of law over which we have jurisdiction.
Whether a claim is well-grounded is an issue of law that the Court of Veterans Appeals reviews without deference to the BVA. See 38 U.S.C. §7261(a)(1) (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993) (citing King v. Brown, 5 Vet. App. 19, 21 (1993)). As noted above, if a claim is well-grounded, the law requires the Secretary to assist the veteran; such assistance, if required, is thus a procedure required by law, and the Court of Veterans Appeals has jurisdiction to ensure that legally mandated procedures are performed. See 38 U.S.C. 7261(a)(3)(D) (1994).
Because the Court of Veterans Appeals applied the clearly erroneous standard of review to the legal issues presented by Mr. Giles, we must vacate its decision. Mr. Giles is entitled to a decision on his contention that he has presented a well-grounded claim and that the Secretary is therefore obliged to assist him in developing that claim.
The government argues that a remand to the Court of Veterans Appeals is unnecessary because, in its view, the court has already determined that Mr. Giles did not present a well-grounded claim and is therefore undeserving of the Secretary's assistance. We reject the government's argument.
Nothing in the opinion of the Court of Veterans Appeals suggests that the court considered Mr. Giles's legal arguments. Indeed, the opinion indicates otherwise, because it considers and measures the credibility of the evidence presented by Mr. Giles. Assessment of credibility is of course part of any clear error review, but credibility is presumed in favor of the veteran when the issue under review is well-groundedness. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). By addressing the credibility of Mr. Giles's evidence, the court necessarily bypassed review of the legal question of whether Mr. Giles's claim is well-grounded.
Finally, we note that at oral argument in this court Mr. Giles's attorney stated that the issue of whether Mr. Giles has presented a well-grounded complaint (thus deserving of assistance) was first presented to the Court of Veterans Appeals. The government has not, however, objected to Mr. Giles's arguments as untimely or not preserved. By its silence, the government has waived any complaint to adjudication of Mr. Giles's legal arguments. We note further that the Court of Veterans Appeals did not dismiss Mr. Giles's legal arguments on the ground that they had not been made before the BVA and preserved for appeal to the Court of Veterans Appeals. We hold that the legal issues are alive, and that on remand the Court of Veterans Appeals must hear and decide those issues.
The decision of the Court of Veterans Appeals is vacated and the case is remanded for further proceedings.