Appeal from the United States Court of Appeals for Veterans Claims in 06-2036, Judge Robert N. Davis.
The opinion of the court was delivered by: Plager, Circuit Judge.
Before RADER, Chief Judge, NEWMAN, and PLAGER, Circuit Judges.
This is a veterans benefits case. Since 1997, Clabon Jones has been receiving benefits for a service-connected post-traumatic stress disorder ("PTSD"), with a 100% disability rating. Prior to that, he had been awarded service-connected benefits for PTSD rated at 50% disabling with a 1989 effective date. Mr. Jones asserts that he is entitled to an earlier effective date for PTSD based on a claim filed in 1973, which he alleges was still pending when his claim was later reopened.
The Board of Veterans' Appeals ("Board") denied Mr. Jones's claim for an earlier effective date; the Court of Appeals for Veterans Claims ("Veterans Court") affirmed. The Veterans Court acknowledged that the 1973 claim remained pending for several years because the Department of Veterans Affairs ("VA") failed to respond when Mr. Jones appealed the decision by the regional office ("RO") denying that claim. However, the Veterans Court held that the 1973 claim was effectively resolved by a 1986 Board decision denying service connection for PTSD, and thus the 1973 claim was no longer pending in 1989 when Mr. Jones requested that the VA reopen his claim. We agree with the Veterans Court and therefore affirm the judgment denying an earlier effective date.
Mr. Jones served on active duty in the United States Army from August 1969 to March 1971. In September 1973, Mr. Jones filed a claim for a service-connected illness for "nerves." The Houston RO denied his claim in February 1974. Mr. Jones filed a March 1974 statement in support of his claim and requested that the RO consider the statement to be a "notice of disagreement" ("NOD") and "a claim for re-evaluation for my nervous condition." Between April 1974 and January 1977, the RO issued a series of deferred and confirmed ratings decisions, eventually denying service connection for a nervous condition. The RO, however, never issued the statutorily-required Statement of the Case ("SOC") in response to Mr. Jones's March 1974 statement, denominated by him as an "NOD." See 35 U.S.C. § 7105(d)(1).
In July 1983, Mr. Jones requested that his claim be reopened specifically for PTSD. The RO reopened his claim but denied service connection for PTSD. Mr. Jones did not appeal that decision.
Mr. Jones again requested that his claim be reopened, and the RO in June 1985 again denied service connection for PTSD. In November 1985, after receiving VA hospital records, the RO continued the previous denial of service connection for a nervous condition.
Mr. Jones appealed the June 1985 and November 1985 RO decisions to the Board. In November 1986, the Board denied service connection for a nervous condition, including PTSD. The Board stated in its decision that new and material evidence had not been added to the record since the RO's denial of Mr. Jones's claim in 1977. Nevertheless, the Board reviewed all the evidence of record, including service medical records, and considered Mr. Jones's claim on the merits.
In January 1987, Mr. Jones again requested that his claim for a nervous condition be reopened. The RO denied service connection, and Mr. Jones appealed to the Board. In February 1988, the Board again found that service connection for a nervous disorder, including PTSD, was not established.
Mr. Jones requested that his claim be reopened again in May 1989. The RO denied his PTSD claim in November 1989 and, after receiving correspondence from Mr. Jones's personal physician, confirmed the denial in a January 1990 decision. Mr. Jones filed an appeal with the Board.
In February 1991, a VA medical examiner diagnosed Mr. Jones with PTSD. The Board subsequently remanded his PTSD claim to the RO for further development. The RO continued to deny the claim, but in October 1995 the Board reversed and awarded service connection for PTSD. The RO then evaluated Mr. Jones's PTSD as 50% disabling with an effective date of May 1989, the date of Mr. Jones's request to reopen his claim. The RO later awarded Mr. Jones an increased rating of 100% effective March 1997, the date of a comprehensive VA medical examination to determine the full extent of his PTSD.
Mr. Jones disagreed with the May 1989 effective date and appealed to the Board. In July 1998, the Board denied an effective date earlier than May 1989 for PTSD. Mr. Jones appealed to the Veterans Court, which granted a joint motion to vacate the Board's decision and remand for further consideration of entitlement to an earlier effective date for service connection for PTSD. After various appeals and remands for reconsideration of Mr. Jones's claim in view of, among other things, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096, the Board in March 2006 again denied an effective date for PTSD earlier than May 1989.
One of Mr. Jones's arguments was that he was entitled to an earlier effective date because the RO's February 1974 decision denying his original September 1973 claim was not final. He argued specifically that the September 1973 claim remained open because the RO failed to provide an SOC in response to Mr. Jones's March 1974 statement, which should have been construed as an NOD. The Board acknowledged the argument, but concluded that the February 1974 RO decision was rendered final when it was subsumed by the 1986 Board decision, which "addressed all the evidence of record at the ...