United States Court of Appeals for the Federal Circuit 

2009-7024 

EUGENE CHARLES, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Respondent-Appellee. 

John F. Cameron, Jr., of Montgomery, Alabama, argued for claimant-appellant. 

Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, DC, argued for 

respondent-appellee. On the brief were Michael F. Hertz, Deputy Assistant Attorney 

General, Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director, and 

Tara J. Kilfoyle, Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy 

Assistant General Counsel, and Martie S. Adelman, Attorney, Office of the General 

Counsel, United States Department of Veterans Affairs, of Washington, DC. 

 

Appealed from: United States Court of Appeals for Veterans Claims 

Judge Alan G. Lance, Sr. 
United States Court of Appeals for the Federal Circuit 

2009-7024 

EUGENE CHARLES, 

 Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

 Respondent-Appellee. 

Appeal from the United States Court of Appeals for Veterans Claims in 06-0020, Judge 

Alan G. Lance, Sr. 

___________________________ 

DECIDED: December 1, 2009 

___________________________ 

Before GAJARSA, DYK, and MOORE, Circuit Judges. 

MOORE, Circuit Judge. 

Eugene Charles appeals the decision of the Court of Appeals for Veterans 

Claims (Veterans Court) affirming the Board of Veterans’ Appeals (Board) decision 

denying Mr. Charles an earlier effective date for service-connected disability benefits. 

For the reasons discussed below, we vacate and remand. 

BACKGROUND 

Mr. Charles served on active duty in the United States Navy from August 7, 1972 

to August 30, 1974. On September 10, 1980, he filed a claim for service-connected 

benefits for manic depression (1980 Claim). On October 28, 1980, the Department of 

Veterans Affairs (VA) regional office (RO) issued a rating decision denying his claim 
(1980 Rating Decision). Mr. Charles submitted additional medical evidence, in 

particular a VA medical certificate dated September 1981 diagnosing him with a 

paranoid personality disorder. VA did not issue a Supplemental Statement of the Case 

nor is there any assertion that VA considered this supplemental evidence. 

On March 1, 1982, Mr. Charles filed a second claim for benefits for a nerve 

condition (1982 Claim). RO sent Mr. Charles a letter stating that “[s]ervice connection 

for nervous condition was previously denied” and informing him that in order to reopen 

his claim, he “would have to submit evidence not previously considered showing that 

this condition was incurred in or aggravated by active duty” (1982 Letter).

Thereafter, Mr. Charles submitted additional information to RO, including a third 

claim1 and additional medical evidence. On February 5, 1991, Mr. Charles filed a fourth 

claim (1991 Claim), in which he stated he was filing for service-connected disabilities for 

a “blood disease and nervous condition” and that a doctor at a VA medical center said 

he should file this claim. 

The record is unclear as to exactly what happened next. In 1995, the Board 

noted that Mr. Charles’ claim file had been lost and rebuilt, and it was “not possible to 

tell whether [Mr. Charles] was properly notified of the denial” or “what records might 

have been utilized in this purported denial.” The Board further noted that Mr. Charles 

appeared to have been awarded benefits by the Social Security Administration (SSA). 

The Board remanded Mr. Charles’ claim to RO for further development and its remand 

order stated that RO should request copies of Mr. Charles’ medical records from the 

 1

 The RO interpreted Mr. Charles’ third claim (filed June 2, 1983) as a 

request for non-service connected benefits. In 1984, RO issued a rating decision 

granting him pension dating back to July 1, 1983. 

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SSA. RO did not obtain Mr. Charles’ SSA medical records. Charles v. Peake, No. 06-

0200, 2008 U.S. App. Vet. Claims LEXIS 626, *26-27 (May 14, 2008). On appeal from 

RO, in 1997, the Board reviewed the evidence in Mr. Charles’ file and determined that 

he had not submitted any new and material evidence. The Board therefore denied his 

request to reopen his claim for a psychiatric disorder. 

Mr. Charles appealed to the Veterans Court. In 1998, we invalidated the test for 

new and material evidence that had been applied by the Board in favor of the standard 

set forth by VA in 38 C.F.R. § 3.156(a). Hodge v. West, 155 F.3d 1356, 1363-64 (Fed. 

Cir. 1998). Thus, upon a joint motion filed by the parties, the Veterans Court vacated 

the Board’s 1997 decision and remanded for a new determination of whether Mr. 

Charles had submitted new and material evidence. On remand, the Board found that 

“[c]ompetent evidence linking a current psychiatric disability to an acquired in-service 

psychiatric disability has been presented.” On July 21, 2000, the Board remanded to 

RO with detailed instructions for further development of Mr. Charles’ claim, reminding 

RO that it should afford the claim expeditious treatment. On February 21, 2003, RO 

issued a rating decision granting Mr. Charles a 50% disability rating for his serviceconnected psychiatric disorder dating back to February 5, 1991 (the date of Mr. Charles’ 

“Statement in Support of a Claim”). 

Mr. Charles timely submitted a Notice of Disagreement regarding the 2003 

Rating Decision, challenging both the rating and the effective date. RO sent Mr. 

Charles a Statement of the Case dated June 21, 2004, which indicated that he had 

been granted a 100% disability rating dating back to February 5, 1991. RO denied Mr. 

Charles’ request for an earlier effective date. RO explained that his benefits could not 

2009-7024 3
date back any earlier because his original claim (the 1980 Claim) was final by virtue of 

the 1980 Rating Decision denying compensation, and his request to reopen that claim 

was not received until February 5, 1991. 

Mr. Charles appealed to the Board. In 2005, the Board denied his request for an 

effective date earlier than 1991. The Board explained that the benefits could not extend 

back before the date of a new claim or a claim to reopen. It then determined that Mr. 

Charles did not have a pending claim or a claim to reopen dated prior to February 5, 

1991. With respect to his 1980 Claim, the Board determined that the 1980 Rating 

Decision became final because Mr. Charles did not appeal. As to the 1982 Claim, the 

Board interpreted it as a request to reopen his 1980 Claim and concluded that Mr. 

Charles abandoned the 1982 Claim when he failed to reply to RO’s 1982 Letter 

requesting new evidence. Thus, the Board found that the preponderance of the 

evidence weighed against Mr. Charles’ claim for an effective date earlier than February 

5, 1991. 

Mr. Charles appealed to the Veterans Court, which affirmed the Board’s decision. 

Charles, 2008 U.S. App. Vet. Claims LEXIS 626. Relevant to this appeal, the Veterans 

Court agreed with the Board that Mr. Charles abandoned his 1982 Claim by not 

supplying medical evidence within one year of the date it was requested. Id. at *18-21. 

The Veterans Court also agreed with the Board that Mr. Charles’ 1980 Claim was final. 

The Veterans Court held that Mr. Charles failed to appeal the 1980 decision and that by 

abandoning his 1982 Claim he abandoned the 1980 Claim. The Veterans Court 

recognized that Mr. Charles asserted that he had submitted new evidence within one 

year of the 1980 Claim, which would render the 1980 Rating Decision nonfinal, and the 

2009-7024 4
government had failed to address or refute that assertion. Id. at *22. The Veterans 

Court, however, reasoned that the abandonment of the 1982 Claim rendered his prior 

pending unadjudicated claims final, citing our decision in Williams v. Peake, 521 F.3d 

1348, 1350 (Fed. Cir. 2008). Thus, the Veterans Court concluded that there was no 

clear error in the Board’s determination that Mr. Charles was not entitled to an effective 

date earlier than February 5, 1991. Id. at *24. 

 Mr. Charles timely appealed to our court. We have jurisdiction to review the 

Veterans Court’s decision under 38 U.S.C. § 7292. 

DISCUSSION 

We may review a decision of the Veterans Court to determine the validity of a 

statute or regulation or any interpretation thereof that was relied on by the Veterans 

Court in its decision. 38 U.S.C. § 7292(a). Absent a constitutional issue, we cannot 

review factual determinations or “challenge[s] to a law or regulation as applied to the 

facts of a particular case.” Id. § 7292(d)(2). 

Mr. Charles argues that the Veterans Court misinterpreted 38 U.S.C. § 5108 and 

38 C.F.R. § 3.158(a) when it concluded that the 1980 Rating Decision was final. 38 

U.S.C. § 5108 states that “[i]f new and material evidence is presented or secured with 

respect to a claim which has been disallowed, the Secretary shall reopen the claim and 

review the former disposition of the claim.” 38 C.F.R. § 3.158(a) states in relevant part 

that “where evidence requested in connection with an original claim, a claim for increase 

or to reopen or for the purpose of determining continued entitlement is not furnished 

within 1 year after the date of request, the claim will be considered abandoned.” Mr. 

Charles asserts that the 1980 Rating Decision was rendered nonfinal when he 

2009-7024 5
submitted new evidence within his one-year period of appeal. Once RO renders a 

decision on a claim for benefits, the claimant may appeal by filing a Notice of 

Disagreement within one year of the mailing date of the decision. 38 U.S.C. 

§ 7105(b)(1). “New and material evidence received prior to the expiration of the appeal 

period . . . will be considered as having been filed in connection with the claim which 

was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b). RO must 

notify the claimant in writing of decisions affecting the payment of benefits or granting 

relief. 38 C.F.R. § 3.103(f). Among other things, this notice must provide the reason for 

the decision, summarize the evidence considered, and inform the claimant of the right to 

appeal. Id. 

Mr. Charles asserted—and the government did not refute—that he submitted 

new evidence within his one-year appeal period. The government never argued below 

that the evidence was not submitted within the one-year appeal period. In fact, the 

Veterans Court noted that it “could construe the Secretary’s failure to respond to these 

arguments as a concession of error.” Charles, 2008 U.S. App. Vet. Claims LEXIS 626, 

*22. The government cannot argue for the first time on appeal that the new evidence 

was not submitted by Mr. Charles within the one-year appeal period—such argument 

has been waived.2

 

As the government acknowledged, when new evidence is submitted within the 

appeal period, RO must consider it and prepare a Supplemental Statement of the Case. 

 2

 The government moves to supplement the joint appendix with evidence 

which it claims would support its new argument that Mr. Charles may not have 

submitted the new evidence within the one-year time period. As the government waived 

this argument by failing to raise it in the proceedings below, we deny the motion to 

supplement the joint appendix. 

2009-7024 6
Oral Argument at 16:48-17:02, 18:41-18:50. It is undisputed that RO did not do this with 

regard to the new evidence that was submitted following the 1980 Rating Decision. 

Because new evidence was submitted within one year of the 1980 Rating Decision, Mr. 

Charles’ 1980 Rating Decision did not become final by his failure to appeal within one 

year. See Muehl v. West, 13 Vet. App. 159, 161-62 (1999) (concluding that where new 

evidence was received within the appeal period, RO’s decision was not a final decision, 

and the new evidence should have been considered in conjunction with the original 

claim). 

The government asserts, and the Veterans Court found, that the 1980 Rating 

Decision became final when Mr. Charles abandoned his 1982 Claim by failing to present 

new evidence within one year of the VA request. The question of interpretation 

presented in this case is whether a subsequent claim that is abandoned renders an 

earlier pending claim also abandoned. This situation is markedly different from that in 

which a later-filed claim is adjudicated on the merits. As we explained in Williams v. 

Peake, “a reasonably raised claim remains pending until there is either a recognition of 

the substance of the claim in an RO decision from which a claimant could deduce that 

the claim was adjudicated or an explicit adjudication of a subsequent ‘claim’ for the 

same disability.” 521 F.3d at 1350 (quoting Ingram v. Nicholson, 21 Vet. App. 232, 243 

(2007)). Thus, when the substance of a later-filed claim is addressed in an RO 

decision, the claimant can infer that the earlier-filed claim based on the same disability 

has also been adjudicated. Id. When a later-filed claim is abandoned, it does not have 

the same effect. “[U]nlike an adjudicated claim, where a decision has been rendered 

and notice of that decision has been provided to the claimant, an abandoned claim has 

2009-7024 7
not been adjudicated and no specific notice has been provided to the claimant that his 

claim might be or even has been considered abandoned for failure to timely provide 

information.” Charles v. Shinseki, No. 06-20, Order Denying Motion for Reconsideration 

(Kasold, J., dissenting) (Vet. App. Aug. 29, 2008). We conclude that the Veterans Court 

misinterpreted 38 C.F.R. § 3.158 when it determined that Mr. Charles’ 1980 claim was 

finally denied. Abandonment of a non-final and non-appealable later claim cannot 

render final an unadjudicated earlier claim in which the agency failed to act.3

 Neither 38 

U.S.C. § 5108 nor 38 C.F.R. § 3.158 can be interpreted as requiring a veteran to submit 

new and material evidence in order to reopen a pending, unadjudicated claim. 

In view of our decision that a later abandoned claim cannot render final an 

earlier-filed unadjudicated claim, we need not reach the issue of whether the time limits 

under 38 U.S.C. §§ 5102 and 5103 and 38 C.F.R. §§ 3.109 and 3.158 are subject to 

equitable tolling. Because the 1980 claim was not final, all subsequent claims, 

correspondence, and medical evidence are part of that claim for consideration by VA. 

Oral Argument at 29:05-41 (government acknowledges that all subsequent filings would 

be additional evidence to be considered part of the 1980 claim if it is still pending). 

Hence, Mr. Charles does not need to prevail on his tolling argument in order to have the 

subsequent evidence considered by VA. We also need not address whether VA 

breached its duty to assist Mr. Charles. 

 3

 The government concedes that the 1982 claim was non-final and nonappealable. 

2009-7024 8
2009-7024 9

CONCLUSION 

For the foregoing reasons, we vacate the decision of the Veterans Court and 

remand to the Veterans Court with instructions to remand to the Board, and with further 

instructions for the Board to remand to RO to determine whether Mr. Charles is entitled 

to an effective date prior to February 5, 1991. On remand, RO must consider all 

evidence of record dating back to Mr. Charles’ original claim. In addition, RO should 

request and consider Mr. Charles’ SSA medical records, as initially required by the 

Board’s 1995 remand order. 

VACATED and REMANDED