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Glover v. West

August 02, 1999

FRANK A. GLOVER, CLAIMANT-APPELLANT,
v.
TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Before Newman, Lourie, and Kelly, *fn1 * Circuit Judges.

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

Appealed from: United States Court of Appeals for Veterans Claims

Judge Donald L. Ivers

Frank Glover appeals from the decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans' Appeals' decision that the Regional Office's (the "RO's") 1979 rating decision denying him compensation for a psychiatric disorder was not the result of clear and unmistakable error. See Glover v. West, No. 97-222 (CAVC Aug. 5, 1998) (memorandum decision); Glover v. West, No. 97-222 (CAVC Aug. 28, 1998) (judgment). We affirm.

BACKGROUND

Glover served in the United States Navy from July 1940 to February 1945, during which time he had numerous combat experiences that resulted in psychiatric disability. See Glover, slip. op at 1. In early 1945, Glover was honorably discharged and awarded a 50% disability evaluation for psychoneurosis; following a series of rating decreases, his rating was ultimately reduced to 0% in 1952. See id. at 2. In August 1979, Glover sought an increased disability rating for his psychiatric condition and obtained a physician's medical evaluation from the Louisiana Department of Veterans Affairs (a state agency). See id. However, the evaluation only addressed Glover's gastrointestinal problems and degenerative disk disease, with no reference to any psychiatric malady. See id. Thus, in its October 18, 1979 decision, the RO denied Glover an increased rating for his psychiatric disorder. See id. Glover did not appeal this decision, and the decision became final. See id.

On December 9, 1992, Glover again sought an increased rating for his psychiatric condition. See id. The Department of Veterans Affairs ("DVA") examined Glover for mental disorders and post-traumatic stress disorder (PTSD), and these results, together with those of Glover's physician, Dr. Richard Cincinelli, were sent to the RO. See id. The RO concluded that an increased rating for service-connected anxiety reaction-PTSD had been established. See id. On April 23, 1993, Glover was assigned a disability rating of 50%, effective December 9, 1992, the date on which his application was received. See id.

Glover then filed a Notice of Disagreement regarding the RO's April 1979 rating decision, arguing that this decision was the result of clear and unmistakable error. *fn2 See In re Glover, No. 94-20 990, slip op. at 1 (BVA Oct. 30, 1996). Specifically, Glover argued that the RO had breached its duty to assist when it failed to examine him to ascertain the nature and extent of his mental illness, thereby resulting in an incomplete and incorrect record. See id. at 2-3, 6-7. The Board held that even if the RO had breached its duty to assist by failing to provide Glover with a psychiatric examination, the incomplete record was not the product of clear and unmistakable error. See id. at 9.

Glover appealed to the Court of Appeals for Veterans Claims, which affirmed, holding that there was no clear and unmistakable error in the RO's 1979 decision. See Glover, slip op. at 5. The court first disagreed with Glover's contention that the RO had failed in its duty to assist, reasoning that the VA had no duty to attempt to obtain records of which it had no notice. See id. at 3-4. The court observed that when Glover was examined in 1979, he was not seeking treatment for a psychiatric disability, he had not informed the physician at the Louisiana DVA that such a condition had recurred, and he had failed to reference the existence of private medical records which documented his psychiatric disability. See id. at 4. The court also noted that there was no evidence that Glover attempted to have his psychiatric problems diagnosed or treated in 1979. See id.

The court further disagreed with Glover's contention that the VA should have ordered contemporaneous medical and psychological examinations in 1979. The court interpreted the regulation governing reexaminations, 38 C.F.R. § 3.327, *fn3 to require the veteran to present evidence of a material change in his or her service-connected condition in order to trigger the VA's obligation to provide a reexamination. See Glover, slip op. at 4. Because Glover failed to present any evidence of a material change in his service-connected condition, the court concluded that the VA had no obligation to provide him with a reexamination. See id.

Glover appealed to this court.

DISCUSSION

Our jurisdiction to review a decision of the Court of Appeals for Veterans Claims, set forth in 38 U.S.C. § 7292, is highly circumscribed. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). Under 38 U.S.C. § 7292(a), a party may seek review of a decision "with respect to the validity 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) (1998). We review the statutory interpretation of the Court of Appeals for Veterans Claims de novo. See Richard v. West, 161 F.3d 719, 721 (Fed. Cir. 1998).

Glover advances several arguments in support of his claim that the Court of Appeals for Veterans Claims erred in concluding that there was no clear and unmistakable error in the 1979 ratings decision. Glover contends that the court misinterpreted § 3.327(a) by not construing the regulation in a pro-claimant fashion. Specifically, Glover argues that § 3.327(a) mandates a reexamination in all cases in which a veteran attempts to reopen a claim for a service-connected disability, and that the agency has no discretion under this regulation to determine whether a reexamination is necessary. Glover continues that the agency's failure to request a reexamination in turn resulted in a violation of its duty to assist. Glover thus argues that the ...


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