Monday, December 15, 2014

Pacheco v. Gibson

Pacheco v. Gibson, 27 Vet.App. 21 (July 17, 2014) (en banc)
38 C.F.R. § 3.157(b), INFORMAL CLAIM
Held: “A previous allowance of pension can result in an earlier effective date for claims for increased benefits, but not for claims to reopen – which require a previous disallowance for the service-connected disability not being compensable in degree.”

Veteran was awarded nonservice-connected pension benefits in 1974. He continued to apply for service-connected benefits throughout the 1970s. In 1978, he was notified that he was no longer eligible for VA pension benefits because his income was too high. He continued to attempt to reopen his claims for service-connected disability benefits, and was finally awarded benefits in 2005, with an effective date of January 2002, the date VA received his most recent request to reopen.

Mr. Pacheco appealed for an earlier effective date, and submitted additional evidence, including service records and a 2001 VA medical record. The Board denied the appeal. In February 2011, on appeal to the CAVC, the Secretary argued that remand was necessary for the Board to address whether a 2001 medical record was an informal claim to reopen under 38 C.F.R. § 3.157(b). The Court remanded on that basis.

On remand, the Board determined that the 2001 VA medical record was not a claim under § 3.157(b), finding that (1) a formal pension or compensation claim had not been allowed – or had not been disallowed because the condition was noncompensable – and (2) Mr. Pacheco was not service connected for the conditions at the time of the 2001 examination. The Board denied an earlier effective date.

On appeal to the Court, Mr. Pacheco argued that the Board should have awarded an earlier effective under § 3.157(b) because he was previously awarded pension benefits and he filed a claim to reopen his previously denied claim for compensation benefits within one year of the 2001 examination. The Secretary argued that the plain language of the regulation should be read as “pairing” certain sentences with other sentences in the regulation, which would only allow a previous pension award to result in an earlier effective date for an increased-rating claim, but not for a claim to reopen. Thus, the 2001 medical record could not serve as an informal claim to reopen “because his claim was not previously disallowed for being not compensable in degree.” 27 Vet.App. at 25. Alternatively, the Secretary argued that the language was ambiguous and that deference to VA’s interpretation was warranted. Id.

In an en banc decision, the Court determined that the language was ambiguous, and afforded deference to the Secretary’s interpretation. The Court found that the Secretary’s interpretation was “not plainly erroneous or inconsistent with the regulation” when viewed within the context of the regulation’s history and VA’s purportedly “consistent” practice in interpreting this regulation. Id. at 26-29. The Court held that Mr. Pacheco did not meet the criteria of § 3.157(b) that would allow the 2001 VA medical record to serve as an informal claim because at that time he did not have a claim that had been disallowed because it was noncompensable. Id. at 29-30. However, the Court remanded the matter for the Board to consider whether Mr. Pacheco would be entitled to an earlier effective date under 38 C.F.R. § 3.156(c), based on his 2008 submission of military service records. Id. at 30-31.

In a partial dissent, joined by three other judges, Judge Davis disagreed with the majority’s deference to VA. Id. at 36. In a separate dissent, Judge Greenberg questioned the ongoing validity of Auer deference (Auer v. Robbins, 519 U.S. 452, 462 (1997)), stating that he “would not reward the Secretary for writing an ambiguous, and unintelligible, regulation.” Id. at 43. Judge Greenberg questioned the CAVC’s jurisdictional powers to grant equitable relief, concluding: “We must provide equitable remedies to deserving veterans and harmonize our jurisprudence with the veterans canon, applying the full extent of our powers when appropriate.” Id. at 44-45.

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