## United States Court of Appeals for the Federal Circuit

2008-7082 JAMES D. SIMS, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Kenneth M. Carpenter , Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. Tara J. Kilfoyle , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondentappellee. On the brief were Jeanne E. Davidson , Director, Todd M. Hughes , Assistant Director, and Hillary A. Stern , Senior Trial Counsel. Of counsel on the brief were Michael J. Timinski , Deputy Assistant General Counsel, and Martie S. Adelman , Attorney, Office of the General Counsel, Unit ed States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Cour t of Appeals for Veterans Claims Judge Mary J. Schoelen

## United States Court of Appeals for the Federal Circuit

2008-7082 JAMES D. SIMS, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. Appeal from the United States Cour t of Appeals for Veterans Claims in 06-0335, Judge Mary J. Schoelen.

___________________________ DECIDED: August 13, 2009

___________________________

Before SCHALL, GAJARSA, and DYK, Circuit Judges

. DYK, Circuit Judge

. James D. Sims (“Sims”) appeals the decis ion of the United States Court of Appeals for Veterans Claims (“Veterans Cour t”) affirming the denial of service connection for an acquired psychiatric disorder . This case presents the question of what procedures the Department of Veterans Affairs (“VA ”) must follow when the Board of Veterans’ Appeals (“Board”) directs the VA r egional office (“RO”) to reopen a case for new and material evidence. The Veterans Court held that the RO could issue a supplemental statement of t he case (“SSOC”) if servic e connection is denied. We affirm.BACKGROUND Sims served on active duty in the United States Army from November 1974 to July 1977. In April 1989, he filed a claim for service connection for a psychiatric disorder, which was denied by the RO in a July 1989 rating decision. Sims did not file a Notice of Disagreement (“NOD”) and that decision became final. In June 1991, Sims request ed that the VA reopen his cl aim on grounds of new and material evidence. In December 1991, the RO denied the request to reopen on the ground that no new and material evidence had been submitted. After various interim proceedings before the RO, Sims filed an NO D, and this triggered an October 1993 Statement of the Case (“SOC”), in which the RO reiterat ed its conclusion that no new and material evidence had been submitted. Sims appealed to the Board in February 1994. Thereafter, Sims on several occasions submitted additional evidence in support of his motion to reopen his claim based on new and material evidence, and the Board and the Veterans Court remanded to the RO. Eventually, in a November 2002 decision the Board found that new and material evidence—including additional service medica l records and service personnel records, non-VA and VA medical records, testimony from the veteran, and st atements from his sister and his ex-wife—had been submitted, suffi cient to reopen Sims’s claim for service connection for an acquired psychiatric disorder. The Board initially stated that it would obtain Sims’s service medical records to review them for evidence of paranoia while Sims was in service. However, in Oc tober 2003, the Board instead remanded Sims’s case to the RO to decide the issue of service connection because of our decision in Disabled American Veterans v. Se cretary of Veterans Affairs , where we held that the

2008-7082 2Board as a general matter may not review evidence in the first instance. See 327 F.3d 1339, 1346–48 (Fed. Cir. 2003). The Board direct ed the RO to develop the record by finding any in-service records of treatment for alcohol abuse and psychiatric treatment. The Board directed the RO, “[a]fter the development requested above has been completed to the extent possi ble, the RO should again review the record. If any benefit sought on appeal remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.” In re Sims , No. 94-32376, slip op. at 3 (Bd. Vet. App. Oct. 28, 2003) (emphasis added). In July 2004, the RO denied the claim for service connection and issued an SSOC. In the SSOC, the RO stated that it had request ed the evidence from the Womack Army Medical Center in Fort Bragg, North Carolina, as directed by the remand order, and had received a reply from the medical center that “no records were located.” J.A. 37. The RO then stat ed that “there is no evidence showing [Sims] developed a chronic psychiatric disability while [Sims was] on active duty. Additionally, there is no competent evidence showing [Sims] developed a psychosis to a compensable degree within the one year period after [his] discharge from service in July 1977.” J.A. 46. Sims filed a request for an immediate transfer of the case to the Board. Before the Board, Sims argued that t he RO’s issuance of an SSOC in July 2004 was improper, because under 38 C. F.R. § 19.31(a) the reques t to reopen and the claim of service connection were separate “issues.” Sims also argued that the SSOC failed to comply with the notice r equirements of 38 U.S.C. § 5104(a) and 38 C.F.R. § 3.103(b)(1). Additionally, Sims argued t hat, because the issuance of the SSOC was improper, the Board did not hav e subject matter jurisdiction over the appeal, and any

2008-7082 3action on the merits by the Board was im proper until Sims received a proper rating decision and an SOC. In October 2005, the Board affirmed the denial of Sims’s claim, finding that “the preponderance of the evidence is against serv ice connection for an acquired psychiatric disorder.” In re Sims , No. 94-32376, slip op. at 9 (Bd. Vet. App. Oct. 28, 2005). The Board rejected Sims’s jurisdictional arguments because they were based on an “unstated assumption that a determination as to whether there is new and material evidence to reopen a claim and a determinati on as to whether service connection should be granted on the merits when a pr eviously denied claim is reopened are completely separate matters for jurisdictional purposes.” Id. at 10. The Board held that the RO’s use of an SSOC was proper based on Bernard v. Brown , 4 Vet. App. 384 (1993), abrogated in part on other grounds by Disabled Am. Veterans , 327 F.3d at 1346–48, and that Sims’s argum ents were without merit. In re Sims , No. 94-32376, slip op. at 11 (Bd. Vet. App. Oct. 28, 2005). Sims appealed to the Veterans Court. In December 2007, the Veterans Cour t affirmed the Board’s decision. Sims v. Peake , No. 06-0335, slip op. at 1, 2007 WL 4591256 (Vet. App. Dec. 19, 2007). Sims timely appealed to our court. We have jurisd iction to review the Veterans Court’s decision under 38 U.S.C. § 7292. DISCUSSION The scope of our review of a Veterans Court decision is limit ed by statute. See 38 U.S.C. § 7292. However, our jurisdiction does not extend to resolving factual issues, but does extend to determining whether the Ve terans Court has made a legal error. Szemraj v. Principi , 357 F.3d 1370, 1372 (Fed. Cir. 2004).

2008-7082 4A claim for VA benefits is initially decided by an agency of original jurisdiction (“AOJ”), in this case in a rating decision by an RO. See 38 U.S.C. § 7105(b)(1), (d)(1); 38 C.F.R. § 20.3(a). If service connection is denied by the RO, the claimant has one year in which to appeal the RO’s decision. 38 U.S.C. § 7105(b)(1), (c). During that one year period and before initiating an appeal, the claimant can submit additional supporting evidence. See 38 C.F.R § 20.302(b)(2). 1 Before the end of that one year period, a claimant can initiate appellate re view of the rating decision by filing an NOD with the RO. 38 U.S.C. § 7105( a); 38 C.F.R. §§ 20.200, 20.300. The NOD is a written communication from the veteran expressi ng dissatisfaction or disagreement with an adjudicative decision of the VA. 38 C.F.R. § 20.201. After a ve teran files an NOD, if the RO does not grant the benefit, the RO mu st prepare an SOC, “which includes a summary of pertinent evidence in the case, ci tations to pertinent laws and regulations, a discussion of how those laws and regulations affect the decision, and a summary of the reasons for the decision.” Disabled Am. Veterans , 327 F.3d at 1342; see also 38 U.S.C. § 7105(d)(1); 38 C.F.R. § 19.29. “To complete the appeal to the Board, the claimant is required to file a Substantive Appeal with the AO J within sixty days from the date the SOC is mailed.” Disabled Am. Veterans , 327 F.3d at 1342; see also 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.202. If the Board remands for further evidentiary development, the RO issues an SSOC, and the case is automatically returned to the Board for review. 19 C.F.R.

1 The claimant can also submit additi onal evidence after initiating an appeal. 38 C.F.R § 20.800. The consi deration of such additional ev idence is governed by 38 C.F.R. §§ 3.156(b), 20.1304(c). See Jackson v. Nicholson , 449 F.3d 1204, 1206–07 (Fed. Cir. 2006). RO rulings with respect to additional evidence submitted after the issuance of an SOC take the form of an SSOC. 38 C.F.R. § 19.31(b).

2008-7082 5§ 19.31(c); 38 C.F.R. § 20.302(c) (“Provided a Substantive A ppeal has been timely filed in accordance with paragraph (b ) of this section, the response to a Supplemental Statement of the Case is optional and is not required for the perfection of an appeal.”). Here, Sims did not file an NOD with res pect to the 1989 rating decision, and that decision became final. In 1991, Sims moved to reopen this claim. Under 38 U.S.C. § 5108, “[i]f new and material evidence is pr esented 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.” The RO in the first instanc e determines whether new and material evidence has been submitted. See id. Then, if the RO (or the Board on appeal) determines that the ve teran has produced new and material evidence, the case is reopened and the RO “must evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.” See Manio v. Derwinski , 1 Vet. App. 140, 145 (1991); see also 38 U.S.C. § 7104(a). While a request to reopen is not a new clai m for benefits, it is treated as a new matter distinct from the original claim for VA benefits. The RO t herefore issues a new rating decision. The veteran may file an NOD, and the RO then issues an SOC. If additional evidence is submitted to support the motion to reopen, the RO addresses such evidence in an SSOC. Here, the RO determined that Sims had not submitted new and material evidence. Sims filed an NO D, the RO then prov ided an SOC, and Sims filed a substantive appeal to the Board. The Board determined that there was new and material evidence submitted by the veter an and remanded the case for consideration of the merits of the claim. The RO reopened the claim, but rejected the service connection claim in an SSOC.

2008-7082 6Sims asserts that, when the Board order ed reopening, the RO was obligated to begin anew with the claim adjudication (i.e., i ssue a new rating decision followed by an SOC) and was not authoriz ed to simply issue an SSOC. Sims’s primary theory is that as a result of the use of the SSOC procedure he was denied the opportunity to submit additional evidence during a one-year period afte r the RO decision—an opportunity that exists under the SOC procedure. 2 We disagree that the RO followed an im proper procedure. The sole basis for Sims’s argument are the provisions of 38 U.S.C. § 7104 and 38 C. F.R. § 19.31(a). Section 7104(a) provides, “[a]ll questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary.” (Emphases added). And, 38 C.F.R. § 19.31(a) provides, “[i]n no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addr essed in the Statement of the Case .” (emphasis added). The initial filing of a request to reopen is treated as a separate “matter” or “issue” from the initial decision on the claim for benefits, but th is does not suggest that the decision on the merits of the underlying claim in a reopened proc eeding is yet another new “matter” or “issue.” Nothing in the stat ute or regulations s uggests that an entirely new rating decision is required to address the issue of service connection or that service connection is a new “matter” or new “issue” before the RO. Indee d, the regulations

2 The regulations provide a one-y ear period for appeal and allow the submission of additional evi dence during that period. See 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.302(b)(2). W hen the RO decision on remand is issued as an SSOC, it is automatically transferred to the Board thirty days after the issuance of the SSOC. 38 C.F.R. § 20.302(c). In other word s, the one-year period is truncated.

2008-7082 7clearly contemplate the us e of the SSOC proc edure on remands from the Board. See 38 C.F.R. § 19.31(c) (“The agency of original jurisdiction will issue a Supplement Statement of the Case if, pursuant to a re mand by the Board, it develops the evidence or cures a procedural defect, unless” t he only purpose was to assemble records previously considered by the AOJ or the B oard specified that an SSOC is not required. (emphasis added)); id. § 19.38 (“When a case is remanded by the Board of Veterans’ Appeals . . . the case will be reviewed . . . . If any benefits sought on appeal remain denied following this review, the agency of orig inal jurisdiction will issue a Supplemental Statement of the Case . . . .” (emphasis added)). We agree with the reasoning in Bernard , where the Veterans Court addressed this same question, stating: Review of the governi ng statutory provisi ons in 38 U.S.C.A. §§ 7104(a) and 511(a) in the c ontext of the overall st atutory scheme in title 38, U.S. Code, governing veter ans’ benefits claims compels the conclusion that the question whether a claimant has submitted new and material evidence to reopen a claim and the question whether, upon such reopening, a claimant is entitled to VA benefits, are questions relating to a single “matter” for purposes of the Boar d’s jurisdiction under 38 U.S.C.A. § 7104(a). . . . It is axiomatic that claimants do not submit claims merely for the reopening of their previously and fina lly denied claims. Rather, they submit claims for VA benefit s, which, in cases of previously and finally denied claims, implicate both the questi on of whether there is new and material evidence to reopen the clai m and the question of whether, upon such reopening, the claimant is entit led to the requested benefits. . . . Although the two questions are distinc t, they are components of a single claim for benefits under a law that affect s the provision of benefits by the Secretary. . . . The “matter” which wa s the subject of the RO’s decision and, consequently, over which the [Board] has jurisdiction under 38 U.S.C.A. § 7104(a), is the veter an’s claim of entitlement to VA benefits . . . .

2008-7082 82008-7082 9 4 Vet. App. at 391-92 (quotation marks omitt ed). In this context, the RO does not address a new “issue” or “matter” when it consi ders the merits of the claim for service connection after a reopening for new and material evidence. The RO appropriately issued an SSOC on remand in denying Sims’s claim for service connection, and the Board did not exceed its jurisdiction by affirming that ruling. There is also no merit to Si ms’s claim that the notice he received was inadequate under 38 U.S.C. § 5104(a) or 38 C.F.R. § 3.103(b)(1). Therefore, we affirm. AFFIRMED COSTS No costs.