UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O

. 10-2975
J E R R O LD C. B O W

E N , A P P E LL

A N T ,
V

. E R I C K. S H I

N S E K I , S E C R E TA R Y O F V E TER

A N S A F F A I R S , A P P E LLE E

. On Appea l from the B oard of Veter ans' Appea ls (Argued Apr il, 11, 2012 Dec ided J une 29, 2012)
Daniel J. Neilsen , of Seattle, Washing ton, for the a ppellant

. W ill A. Gunn, Gene ral Counsel; R. Randall Campbell , Assistant Gener al Counsel; Nisha C. W agle , Deputy

Assistant Gener al Counsel; and JesseB. Gree nstein, all of Washington, D.C., for the a ppellee.
Be fore KASOL D, Chief Judge , and DAV I S and SCHOEL EN, Judges.
KASOL D, Chief Judge : Vietnam and Persian Gulf war veter an J er ro l d C. Bow en appea ls throug h counsel an August 11, 2010, decision of the Boa rd of Veter ans' Appea ls (B oard) that denied a request t o reope n a cla im for bene fits for muscular dy strophy

beca use he ha d not submit ted new and materia l evidenc e. Mr. Bow en argues that he was denied Due Process when the reg ional office (RO) mailed his hear ing notice to an incorre ct addre ss, and that the Boa rd err ed by not considering whether he raised an alleg ation that his 1994 rating decision wa s t he product of clea r and unmistakable err or (CUE). The Secre tary does not dispute that Mr. Bow en eff ectively was denied

a hear ing by the RO throug h an inadver tent administrative err or but argues that Mr. Bow en was not denied Due Process and that the err or was not prejudicia l. The Secre tary also arg ues that the Boa

rd did not have jurisdiction over any asser tion by Mr. B owen that the 1994 r atingdecision conta ined CUE and there fore the Court lacks jurisdiction over that matter. For the rea sons set forth below, the decision of the B oard w ill be affir med.I. F ACTS

Mr. Bow en filed a claim with the RO in J une 2007, stating that he "w ish[ ed] to file a claim for service connec tion for PTSD and muscular dy strophy ." R. at 211. Despite a 1994 RO decision that denied Mr. Bow en' s claim for muscular dy strophy beca use it was not service connec ted, the RO initially treated Mr. Bow en' s 2007 claim as an "a pplication for service -conne cted compensation." R. at 165. In November 2007, howeve r, the claim was rec lassified as a claim to reope n the 1994 RO decision based on new and materia l evidenc e. The claim wa s d en i ed i n a J uly 8, 2008, rating decision beca

u s e Mr. Bow en had not submitt ed new and materia l evidenc e. Mr. Bow en filed a Notice of Disagree ment (NOD ) stating that he disag ree d with the decision "which denie[d] service

connec tion for muscular dy strophy ." R. at 108. A Statement of the Case was issued in October 2008, continuing the denial of Mr. Bow en' s claim and in fo rm i n g Mr. Bow en of his rig ht to a hearing. Pursuant to Mr. Bow en' s reque st for a hear ing, one was s ch ed u l ed, but notice was sent to an outdated addre ss and Mr. Bow en did not appea r at the schedule d hearing. In No v em b er 2009, Mr. Bow en' s acc redited repr esentative submitt ed an argument noting that the issue was whether "e vidence is materia l to service connec tion for muscular dy strophy ," and c o nte n d in g th a t M r
. B o wen "be lieves his condition was ag g ravated [by ] his active duty as documented in his treatment rec ords from the [P ]residio, San Fr ancisc o, CA." R. at 31. Mr. Bow en' s appea l was cer tified to the Boa

rd on Dec ember 23, 2009, and he was informed that he could (1) persona lly appea r befor e the Boa

rd, (2) send the Boa

rd additional information, and (3) appoint a repr esentative or chang e his repr esenta tive. Mr. Bow en' s acc redited repr esentative sent

an Informal Hea

ring Presentation (I HP), along with a 1991 Army Medica l Evaluation Boa rd (MEB ) repor t. The I HP stated, inter alia, that (1) "a t issue [was e]ntit lement to an incre ased ra t ing for muscular dy strophy ," (2) the p re s u m p t i o n of soundness should apply , and (3) the Boa rd should

acc ept the MEB deter

mination that Mr. Bow en' s muscular dy strophy was incu r r e d in, and ag g ravated by , service

. R. at 14-15. The Boa rd treated the claim s o l el y as one to reope n based on new and materia l evidence , and denied his c laim to r eopen, f inding that ne w and mate rial evide nce ha d not been pr esente d.

2II. THE P ARTIES' ARG UMENTS A. Due Proc ess Mr. Bow en contends that the RO' s failure to proper ly notify him of the date and time of his hear ing violated his Due Process rig hts guara nteed by the Fifth Amendment of the U.S. Constitution and 38 C.F.R. § 3.103(c) (1). In light of his absenc e from the R O h ea ri ng throug h no fault of his own, Mr. Bow en argues that another hearing befor e the RO should have been resc heduled and essentially argues the failure to do so deprive d him of a meaning ful opportunity to participate in the proce ssing of

his claim in violation of his Due Process rights. The Sec reta

ry responds that, e ven assuminghe wa s at fault for not providing a subsequent hear ing befor e the RO, Mr. Bow en' s Due Proc ess rig hts w ere not violate d beca use he was notified of his opportunity for a hear ing befor e the Boa rd, and he chose not to pursue such a hearing

. Moreove r, the Secre tary notes that the eff ective date for the awa

rd of benef

its predic ated on a finding of C UE i n an earlier d ec i sion is the s ame reg ardle ss of when the request for revision is filed. See Flash v. Brown , 8 Vet. App. 332, 340 (1995). Acc ording ly , assuming err or in not resc heduling the RO hear ing, and beca

use he was subsequently offe red a hearing at the Boa rd and the eff

ective date for an awa

rd based on CUE rec eives the same ef fe ct i v e d ate reg ardle ss of when the reque st for

re v ision is filed, the Secre tary arg ues that Mr. Bow en never theless cannot demonstrate prejudice from that er

ror. Mr. Bow en' s briefing in respon s e t o t h e Secre tary was confusing , but afte r extensive questioning at oral argument, it was clarified that Mr. Bowen believes t hat t he denial of a hear ing at the RO level preve nted him from clar ifying that he soug ht revision of the 1994 RO decision based on CUE. 1 B. CUE In his briefing , Mr. Bow en es s en t i ally argues that the Boa rd err ed by not considering his

rea sonably raised argument that the 1994 RO decision was the product of CUE. At oral argument, he clar ified that (1) the Boa rd should have construed liberally the I HP and document submissi on as
a reque st for revision of the 1994 RO decision based on CUE, and should have rema nded that matter

T his specific ar gu

m ent w as not pr esented in Mr. Bo w en' s brie fs to the Court and w as elicited only in 1 respo nse to questioningat o ral ar gu m ent. 3for expedited adjudication pursuant to 38 U.S.C. § 5109B, and (2) the denial of a hearing at the RO

level pre vented him from a ssertinghis CUE request in the fir st instance. The S ecr etar

y contends that the B oard did not have jurisdiction over a reque st for revision of the 1994 RO decision based on CUE beca use that matter was neither rea sonably raised befor e nor adjudicate d by the RO. And, beca use the Boa

rd did not have jurisdiction over that matter, the Court lacks jurisdiction over it as well. The Secre tary also argues that the I HP does not rea sonably raise

a reque st for revision based on CUE, and further notes that, assuming CUE was raised to the Boa rd, ref err al, not rema

nd, would have been the appropr iate reme dy

. Be cause ref err al does not confe r expedited treatment, and beca use the eff

ective date for a succe ss fu l re qu es t for revision based on CUE is the same reg ardle ss of when the reque st is filed, the Secre tary argues that Mr. Bow en cannot obtain any relief from the Court that he otherwise could not g et by filing his reque st for revision with the RO.

III. ANALYSIS A. Due Proc ess The Secre tary does not dispute that Mr. Bow en essentially was denied a hearing at the RO, in violation of § 3.103(c) (1). Rather, the Secre tary argues that Mr. Bow en was aff orded Due Process by his rig ht to appea l and t h e offe r to be hear d befor e the Boa rd, such that Mr. Bow en cannot demonstrate pr ejudice f

rom the fa ct he wa s not provided a he aringat the RO. The Secre tary' s argument is persua sive. The rec ord ref lects, and there is no dispute, that Mr. Bow en was notified at his c orre ct addre ss that he could have a hearing befor e the Boa rd, but chose not to reque st that he aring

. The right to a ppeal to the Boa

rd, including the right to a hearing at the Boa rd, is provided to permit and fac ilitate de n o v o revie w of the appellant' s claim as well as to permit the Boa

rd to corr ect RO err ors or to r emand the err oneous matters to the RO for corr ection. See 38 U.S.C. § 7104 (an appellant is entitled to "one revie w on appea l to the Secre tary ") ; Disabled Am. Veterans v. Sec'y of Veterans Affairs , 419 F.3d 1317, 1319 (F ed. Cir. 2005) (" [T] he Boa rd conducts de novo revie w of [R O] proce eding s based on the rec ord." ); 38 C.F.R. § 19.9(a) (2011) (" I f further evidenc e, clarification of the evidenc e, corr ection of a proce dural defe ct, or any other action is essential for a proper appellate decision, [t he Boa rd] shall rema

nd the case to the ag ency of

4orig inal jurisdiction, specifying the action to be unde rtake n.")

.

Despite being provided an opportunity to appea r at a Boa rd hearing or to submit additional evidenc e, at no point in the proce eding s befor e the Boa rd did Mr. Bow en contest the fac t he was not provided a hear ing at the RO level, or, as discussed in further detail below, apprise the Boa rd of his intent to seek revie w of the J anuar y 1994 RO decision based on CUE. Instead, Mr. Bow en submitt ed

an I HP t ak ing issue with the 2008 RO decision and asking the Boa rd to rew eigh the eviden ce
. Moreove r, irrespe ctive of whether Mr. Bow en asser ted his CUE reque st befor e the RO or the Boa rd, the Secre tary corr ectly notes that a meritorious reque st for revision rec eives the same eff ective date. See Flash , supra . Under these circ umstances , M r. Bow en fails to demonstrate prejudice

. See Shinseki v. Sanders , 556 U.S. 396, 406 (2009) (appellant has burden of demonstrating prejudice ); Ove rton v. Nicholson , 20 Vet.App. 427, 435 (2006) (no prejudice if err or does not aff ect the essential fairne ss of the adjudication). In sum, inasmuch as Mr. Bow en was provided notice of his right to a ppeal to the Boa

rd, as well as the rig ht to a hear ing at the Boa rd, as well as the fac t that a meritorious reque st for revision based on CUE rec eives the same eff ective date reg ardle ss of when filed, Mr. Bow en fa ils to demonstrate a violation of Due Proc ess in the proce ssing of his c laim or that he was prejudice d by the fa ilure of the Sec reta

ry to provide a he aring

at the RO leve l. Sanders , supra . B. CUE We agree with the S ecr etar y that, even with a sy

mpathetic re ading , Mr. B owen' s I HP does not constitute a reque st for revision of the 1994 RO decision based on CUE. Although we have held that the require ment to sy mpathetically rea d the pleading s of a pro se claimant applies to pleading s that might constitute a reque st for revision based on CUE, a claimant never theless must indicate an intent to seek revision and state what constitutes CUE with some degree of specific ity

. See Canady

v. Nicholson , 20 Vet.App 393, 4 0 1 -0 2 (2 0 0 6 ) (noting that in rea ding a pro se reque st for CUE sy mpathetically "the Boa

rd should view the claim in light of the fac t that it is the asser tion of CUE itself that require s specific ity ," b ut "a manifestly chang ed outcome might be inferr ed from pro se pleadings "); Andrews v. Principi , 18 Vet.App. 177, 181 (2004) (holding that "[a] CUE alleg ation must identify the alleg ed er ro r wi t h s ome degree of specific ity ," and the question of whether an appellant has prese nted a valid CUE alleg ation is a question of law that the Court revie ws de novo);

5see also Acc iola v. Peake , 22 Vet.App. 320, 326 (2008) (" [A] CUE theor[y] [i s] more likely to be

succe ssful when the c laimant . . . clea rly intends to raise it." ). There is no contention that the I HP submitt ed by Mr. Bow en to the Boa rd specific ally asser

ts CUE in the 1994 RO decision. Moreove r, the I HP submitted by Mr. Bow en is, at be st, confusing

. Despite the fac t that a claim to reope n was proce ssed by the RO and cer tified for appea l to the Boa rd, the I HP c ites the matter on appea l as entitlement to an incre ased rating

. The I HP the rea fter asser ts the c o ntention that Mr. Bowen' s muscular dy strophy is service connec ted, a fac t not at i ssue i n an incre ased- rating claim. The I HP then notes that the 2008 RO decision misint erpr eted the 1991 Army MEB repor

t when denying Mr. Bow en' s claim to reope n, and asks the Boa rd to acc ept the Army MEB (submitted by Mr. Bow en for inclusion with his claims file) as ev i d ence that his muscular 2 dy strophy is service connec ted. Although a confusing brief lends itself to misunder standing on the part of the rea der, a fa ir and sy mpathetic rea ding of Mr. Bow en' s I HP is that (1 ) h e b eli eved the 2008 RO decision was
err oneous, (2) the 1991 MEB repor t should be included in the claims file, and (3) the Boa rd should weigh the evidenc e in favor of Mr. Bow en. Of note, the I HP fails to mention any err or in the 1994 RO d ec i sion – indeed, it fails to mention the 1994 RO decision at all – and Mr. Bow en fails to demonstrate that the Boa

rd clea rly err ed when it did not construe Mr. Bow en' s I HP as a reque st for revision of the 1994 RO decision based on CUE. See Hilkert v. W est , 12 Vet.App. 145, 151 (1999) (en ba nc) ( appellant be ars bur den of de monstrating e rror on appea l). Moreove r, even if the Boa rd had perc eived Mr. Bow en' s I HP as a reque st for revision of the 1994 RO decision, the Secre tary corr ectly notes that the proper reme dy would have been a ref err al, not a rema

nd. This is beca

use reque sts f

or revision of an RO decision based on CUE must fir st be submitt ed to and adjudicate d by the RO befor e th e Bo ar d ca n attain jurisdiction over the reque st. Jarrell v. Nicholson , 20 Vet.App. 326, 334 (2006) (en banc)

. And, when the Boa rd lacks jurisdiction

over a matter, the ref

err al of the matter to the RO is the appropr iate action. Id .; Godfrey v. Brown , 7 Vet.App. 398, 409-10 (1995) (finding the Boa rd' s ref err al appropr iate when it lacke d jurisdiction to addre ss a newly raised claim, and rema nd appropr iate when it had jurisdiction to addre ss a claim

Alth ough

Mr. B ow en su

bm itted the ME B for inclusi on in his claim s file, the Boa rdfoun d that the MEB 2 alread y w as in Mr. Bo w en' s claim file, and therefore it w as not new and m aterial e vidence. 6but the proper evidentiar

y development ha d not been c ompleted). I n t h i s case , Mr. Bow en does not alleg e that he submitt ed a CUE reque st to the R O. Howeve r, he may file a reque st for revision of the 1994 RO decision at any time, without prejudice to the effec tive date of

any awa rd t hat m ight be forthcoming

. Flash , supra . Indeed, Mr. Bow en' s briefing to the Court may constitute such a reque st that the Secre tary should discuss with Mr. Bow en and be prepa

red to proce ed to adjudicate

. See Landicho v. Brown , 7 Vet.App. 42, 50 (1994) (noting that filings at the Court ma y be sufficie nt indica

tion of intent to file a cla im); 38 C.F.R. § 3.155(a) (2011) ( requiringthe Secr etar y to provide an a

pplication form upon re ceipt of a n informal claim);

see also DiCarlo v. Nicholson , 20 Vet.App. 52, 56-57 (2006) (advising the appell an t t o ask the Secre tary to adjud i ca t e an unadjudicate d claim i n the first instance and seek relief from the C ourt only if the Secr etar

y ref uses to proce ss the reque st).

IV. CONCLUSION Upon consideration of the fore g oing, the Boa rd' s August 11, 2010, decision is AFF I RMED.

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