Chisem v. Gober

NEBEKER, Chief Judge: . The appellant, Mr. Aldosie Chisem, appeals from a February 21, 1996, Board of Veterans’ Appeals (BVA) decision which, inter alia, dismissed claims of clear and unmistakable error (CUE) in an October 1947 VA regional office (RO) decision and of obvious error in a February 1953 BVA decision, both of which denied entitlement to service connection for a psychiatric disability. In lieu of a brief, the Secretary has filed a motion for remand and to stay further proceedings. For the following reasons, the Court will deny the motion for remand and will affirm the BVA decision which dismissed the appellant’s claims of error in the 1947 RO decision and the 1953 BVA decision. I. FACTS On February 18, 1997, the Secretary moved to stay proceedings on this appeal pending action on a motion for BVA reconsideration. On February 19, 1997, the Court stayed proceedings and ordered the Secretary to advise the Court whether the BVA Chairman was inclined to grant reconsideration. On April 21, 1997, the Secretary informed the Court that the Chairman was inclined to grant reconsideration of the 1953 BVA decision. On May 1, 1997, the Secretary filed a motion for partial remand and to stay further proceedings. As grounds for his motion the Secretary states that, although the Chairman has granted reconsideration of the 1953 BVA decision, he denied reconsideration of the 1996 decision on appeal. The Secretary suggests that remand of the issue of whether there was obvious error in the 1953 BVA decision is appropriate in light of the Chairman’s grant, of reconsideration of that decision. He states that the appellant does not oppose such a remand. The issue, the Secretary continues, is how the Court should proceed with the claim of CUE in the 1947 RO decision. He points out that the 1996 BVA decision found as a matter of fact that the 1947 RO decision had been subsumed by the 1953 BVA decision. He suggests a stay of the CUE issue on the basis that if, on reconsideration, the Chairman should find obvious error in the 1953 BVA decision, the effective date of the appellant’s claim would be the date of the 1947 claim. If, however, no error is found in the 1953 BVA decision, the Secretary opines that' the appellant could then pursue the CUE claim presently pending before the Court. The Secretary concludes by stating that, while the appellant does not oppose a stay of the CUE issue, he does oppose a remand of that issue for fear that the Court would not retain jurisdiction over that claim. II. ANALYSIS In Chisem v. Brown, 4 Vet.App. 169, 176 (1993), the Court expressly held that the October 1947 rating decision was not appealed and became final. Before the Board issued its decision on remand, the Court of Appeals for the Federal Circuit decided Smith v. Brown, 35 F.3d 1516 (Fed.Cir.1994). Therein, the Federal Circuit held that “CUE review authority [relates] only to review of [RO] adjudicatory decisions and not to those of the Board.” Id. at 1527. Following Smith, the Secretary filed a motion to recall mandate and for clarification of our earlier decision in light of Smith. In Chisem v. Brown, 8 Vet.App. 374 (1995), we denied the Secretary’s motion. However, in so doing, the Court noted that the “Board should examine whether [Smith ] has clearly changed this Court’s law and, by operation of law, modified our earlier mandate.” Contrary to our pre-Smith determination that “the October 10, 1947, rating decision was never appealed, and thus, became a final decision,” the 1996 BVA decision stated that the 1947 RO decision had been subsumed by the February 1953 BVA decision. The Board accordingly dismissed the claim on the basis that no claim of CUE can exist as a matter of law when the agency of original jurisdiction decision has been appealed to and affirmed by the BVA and thus subsumed by the BVA decision. As we stated above, this Court previously held that the October 1947 RO decision was never appealed. Under the “law of the case” doctrine appellate courts generally will not review or reconsider issues that have already been decided in a [528] previous appeal of the same case. See In the Matter of the Fee Agreement of William G. Smith in Case No. 92-1072, 10 Vet.App. 311, 314 (1997) (under law of case doctrine, “Board was not free to do anything contrary to this Court’s [prior] action” with respect to same claim); Browder v. Brown, 5 Vet.App. 268, 270 (1993). However, the Federal Circuit recognizes three exceptions to the law of the case doctrine: (1) when the evidence at trial was substantially different from that in the former trial upon which the appellate court based its decision; (2) when the controlling authority has since made a contrary decision of law; and (3) when the appellate decision was clearly erroneous. Kori Corp. v. Wilco Marsh Buggies and Draglines, Inc., 761 F.2d 649, 657 (Fed.Cir.1985); see also Chisem, 8 Vet.App. at 375. Recently, in Donovan v. Gober, 10 Vet.App. 404 (1997), this Court addressed the question of whether a final unappealed rating decision that is subsequently reopened and adjudicated on the merits by the BVA can later be subject to a claim of CUE. The Court relied on the Federal Circuit’s Smith opinion, and VA General Counsel Precedent Opinion 14-95 (May 12, 1995) [hereinafter G.C. Prec. 14-95] and concluded that it could not. Donovan, 10 Vet.App. at 407-09. Significantly, G.C. Prec. 14-95 states, “Where a BVA decision involves review of evidence considered in a prior, unappealed [RO] decision con-ceming [sic] the same issues, consideration of a CUE claim regarding the prior [RO] decision would essentially permit review of an issue finally decided by the Board.” Here, the Court finds that, since our decision in 1993 which held that the 1947 RO decision had not been appealed and was final, this area of our jurisprudence has been significantly modified. Accordingly, as enumerated in the second exception to the applicability of the law of the case doctrine, the Court holds that the law of the case doctrine, i.e., the general rule that previous determinations of the reviewing tribunal shall not be disturbed, is here inapplicable. The Board determined that the 1953 BVA decision addressed the identical issue of the appellant’s entitlement to a psychiatric disability, and thus subsumed the 1947 RO decision. Therefore, the Court holds that the BVA did not err in deciding that the matter of CUE in the 1947 RO decision should be dismissed. See Donovan, supra; see also Talbert v. Brown, 7 Vet.App. 352 (1995). Our separately concurring colleague’s fear that the Board would, for the sole purpose of depriving veterans of the ability to challenge a decision on the basis of CUE, “includ[e] in its decision, sua sponte, a sentence stating that it had reviewed the claim de novo, including the disposition of the prior RO decision(s)” assumes bad faith by the Board. Infra at 529. We see no reason to make that assumption. Board proceedings are not adversarial and we cannot and should not accuse the Board of abandoning its duty to adjudicate claims in an atmosphere of maximum indulgence permitted by law. Regarding the claim of obvious error in the 1953 BVA decision, the BVA, in the 1996 decision on appeal, dismissed that claim on the basis that “obvious error” equates with CUE, and that CUE review authority under 38 C.F.R. § 3.105 is not applicable to decisions of the BVA. The BVA noted that the 1953 decision was final based on the evidence then of record. It observed, however, that reconsideration of that decision could be accorded at any time upon a motion by the claimant, or on the BVA’s own motion, based on an allegation of obvious error of fact or law in the decision. The Court agrees with the BVA’s decision to dismiss this claim. A BVA decision is not, as a matter of law, subject to a claim of CUE under 38 C.F.R. § 3.105(a). See Smith, 35 F.3d at 1521; see also Wright v. Brown, 9 Vet.App. 300, 303-04 (1996). Regarding the Secretary’s motion to remand this “obvious error” claim, based on the Chairman’s grant of reconsideration of the 1953 BVA decision, it must be noted that the BVA’s 1953 decision is not on appeal before this Court and that the Court thus has no jurisdiction to review the prior final 1953 Board decision in this case. See Moffitt v. Brown, 10 Vet.App. 214, 225 (1997). Likewise, the Chairman’s decision to grant reconsideration of that decision has no effect on the BVA’s 1996 decision to dismiss the appellant’s claim of obvious error. Rather, it is separate and distinct from any issue on appeal before this Court. Remand is unnecessary. Therefore, the Secretary’s motion for [529] remand will be denied and the BVA decision dismissing this claim will be affirmed. See Phillips v. General Services Admin., 924 F.2d 1577, 1581 (Fed.Cir.1991) (noting that “[i]f the [Merit System Protection Board] does not have jurisdiction, then neither do we, except to the extent that we always have inherent power to determine our own jurisdiction and that of the board” (quoting Maddox v. Merit Sys. Protection Bd., 759 F.2d 9, 10 (Fed.Cir.1985)) and vacating board’s decision as to issue it lacked- jurisdiction to decide). III. CONCLUSION Accordingly, the BVA’s February 21,1996, decision is AFFIRMED.