Larry E. Leonard v. R. JAMES NICHOLSON, Secretary of Veterans Affairs

United States Court of Appeals for the Federal Circuit
04-7139
LARRY E. LEONARD,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-
appellant.
Dawn S. Conrad, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent-appellee. With her
on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and
Kathryn A. Bleecker, Assistant Director. Of counsel on the brief were Michael J. Timinski,
Deputy Assistant General Counsel, and Ethan G. Kalett, Attorney, United States Department
of Veterans Affairs, of Washington, DC. Of counsel was Gerald M. Alexander.
Appealed from: United States Court of Appeals for Veterans Claims
Former Chief Judge Kenneth B. Kramer

-- 1 of 8 --

United States Court of Appeals for the Federal Circuit
04-7139
LARRY E. LEONARD,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs
Respondent-Appellee.
_____________________
DECIDED: April 29, 2005
_____________________
Before LOURIE, CLEVENGER, and PROST, Circuit Judges.
LOURIE, Circuit Judge.
Larry E. Leonard (“Leonard”) appeals from the decision of the United States
Court of Appeals for Veterans Claims (the “Veterans’ Court”) affirming the decision of
the Board of Veterans Appeals denying his claim for an earlier effective date for his total
disability based on individual unemployability (“TDIU”) rating. Leonard v. Principi, 17
Vet. App. 447 (Feb. 20, 2004). We affirm.
BACKGROUND
Leonard served in the Army from September 1971 to September 1973. While in
service, Leonard was involved in an automobile accident that left him with a concussion,
fractures of the left fibula and tibia, and a separated right clavicle. After finishing his
military service, the Department of Veterans Affairs regional office (“RO”) assigned

-- 2 of 8 --

Leonard a 20% rating for his service-connected leg injury, and a 10% rating for his
service-connected shoulder injury, effective September 26, 1973.
Over a period of more than twenty-five years, Leonard continually challenged his
service-connected disability ratings and the effective dates for those ratings before the
RO and the Board of Veterans Appeals.1 In August 1994, the Board awarded Leonard
a TDIU rating with an effective date of September 23, 1985. Relying on a Social
Security Administration decision purportedly supporting Leonard’s claim of total
disability as of January 1975, Leonard filed a motion for reconsideration of the Board’s
1994 decision. In the motion for reconsideration, Leonard sought to obtain an earlier
effective date of September 26, 1973. The Board denied the motion and Leonard filed
an appeal at the Veterans’ Court. In June 1997, the Veterans’ Court dismissed
Leonard’s appeal on the grounds of failure to file a timely motion for reconsideration by
the Board and failure to file a timely notice of appeal at the Veterans’ Court.
In May 2000, the RO, after reviewing a 2000 VA medical record, issued a
decision continuing Leonard’s TDIU rating. In the same decision, the RO also
determined that Leonard was not entitled to an effective date earlier than September
1985 for his TDIU rating. Leonard filed a notice of disagreement and sought to reopen
his disability claim to obtain a TDIU rating with an effective date of September 26, 1973.
The Board denied Leonard’s request for an earlier effective date because, absent
evidence of clear and unmistakable error (“CUE”), the effective date of the claim to
reopen could not be earlier than the filing date of the claim. The Board recognized that
the effective date already assigned to Leonard, September 1985, was earlier than the
1 Leonard’s proceedings before the RO and the Board are summarized in
Leonard, 17 Vet. App. at 448-50.
04-7139 -2-

-- 3 of 8 --

filing date of his claim to reopen, April 2000. Thus, even if Leonard could have
demonstrated that he was completely disabled as of September 1973, the Board could
not provide him with an effective date earlier than September 1985. The Veterans’
Court, relying on 38 U.S.C. § 5110(a) and 38 C.F.R. §§ 3.400(q)(ii), 3.400(r),
and 3.157(b), affirmed the Board’s decision, applying the same reasoning.
Leonard timely appealed to this court. We have jurisdiction pursuant to 38
U.S.C. § 7292.
DISCUSSION
We review a statutory interpretation by the Veterans’ Court de novo. Andrews v.
Principi, 351 F.3d 1134, 1136 (Fed. Cir. 2003). We have exclusive jurisdiction to
“review and decide any challenge to the validity of any statute or regulation or any
interpretation thereof brought under [section 7292], and to interpret constitutional and
statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C.
§ 7292(c) (2000). We may not review findings of fact or application of law to the facts,
except to the extent that an appeal presents a constitutional issue. Id. § 7292(d)(2);
Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999).
On appeal, Leonard makes two primary arguments. First, Leonard argues that
the Veterans’ Court erred by failing to recognize that his request for an earlier effective
date was not a claim to reopen contemplated by § 5110(a). According to Leonard, a
“claim” is a request for a recognized benefit under 38 U.S.C. part II, e.g., compensation
for service-connected disability. Citing D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir.
2000), Leonard asserts that the effective date is merely one factor in the calculus for
determining compensation. Thus, Leonard reasons, a request for an earlier effective
04-7139 -3-

-- 4 of 8 --

date is not a “claim” because it is not, in and of itself, a request for a recognized benefit.
His point, apparently, is that, not being a “claim,” the request for an earlier effective date
is not limited by our holding that one needs new and material evidence or CUE in order
to reopen a claim, Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc), or
limited by the fact that he did not timely appeal the Board’s August 1994 decision first
assigning the September 1985 effective date.
Secondly, Leonard argues that even if his request for an earlier effective date
can be considered a “claim” to reopen, the Veterans’ Court erred by interpreting
§ 5110(a) to proscribe the assignment of an effective date earlier than the date that the
claim to reopen was filed. According to Leonard, the Veterans’ Court’s analysis “is
flawed because it rests on the inaccurate premise that the assignment of the correct
effective date must itself have an effective date.” Leonard appears to be asserting that
a more reasonable interpretation of § 5110(a) is that “effective date,” as used in that
statute, only refers to the date that service-connected disability payments commence,
and does not necessarily correspond to the date when the veteran actually became
disabled. Thus, according to Leonard, although an effective date is initially assigned
when the RO awards service-connected disability, the statute does not preclude
retroactive compensation if the veteran later establishes that he was disabled at a date
earlier than the effective date.
The Secretary counters by arguing that Leonard’s request for an earlier effective
date is an applicable “claim” under § 5110(a) because it seeks retroactive compensation
at the TDIU rate for a period of time preceding his current effective date. The Secretary
04-7139 -4-

-- 5 of 8 --

also notes that the statute required Leonard to file a “specific claim in the form
prescribed” by the Secretary to obtain additional compensation. 38 U.S.C. § 5101(a).
The Secretary responds to Leonard’s assertion that the Veterans’ Court
misinterpreted § 5110(a) by citing Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003).
The Secretary contends that we addressed Leonard’s assertion in Sears by affirming
the Secretary’s interpretation of § 5110(a) in that case, which resulted in the denial of an
earlier effective date for service-connected benefits based on the veteran’s claim to
reopen a previously disallowed claim.
Section 5110(a) provides, in pertinent part, that “the effective date of an award
based on . . . a claim reopened after final adjudication . . . shall not be earlier than the
date of receipt of application therefor.” Thus, this case boils down to the question
whether Leonard’s request for an earlier effective date is a “claim,” as that term is used
in the statute. If it is, then the statute makes clear that even if Leonard could have
demonstrated total disability on his claim to reopen, he still cannot obtain an effective
date earlier than the reopened claim’s application date, April 2000. Sears, 349 F.3d at
1332 (holding that on a claim to reopen, the effective date cannot predate the
application of the claim). As previously observed by the Board and the Veterans’ Court,
such a determination would moot Leonard’s claim since he already has an effective
date earlier than the application date of his claim to reopen.
We agree with the Secretary that Leonard’s request for an earlier effective date is
a “claim” under § 5110(a). Specifically, Leonard’s request for an earlier effective date is
a claim for retroactive compensation. Indeed, Leonard is not seeking an earlier
effective date merely to correct the administrative record; Leonard is seeking an earlier
04-7139 -5-

-- 6 of 8 --

effective date to collect purportedly past-due compensation. Moreover, Leonard’s
appellate brief concedes that his request for an earlier effective date is a “claim for
compensation” and that “compensation is the pertinent benefit in [his] case.”
We are not persuaded by Leonard’s argument that his request for an earlier
effective date is not a “claim” for a new benefit, but, rather, an “adjustment” of a
previously conferred benefit. That is a distinction without substance. Even if Leonard’s
claim were to result in an adjustment of a previously awarded benefit, his request for an
earlier effective date, ultimately, is still a claim for compensation. Furthermore, we
reject Leonard’s reliance on D’Amico; that opinion does not suggest that a veteran could
have the agency “adjust” the effective date component of the compensation
determination without Leonard being subject to the restriction of § 5110(a).
We also reject Leonard’s assertion that he can receive retroactive compensation
for his total disability because the term “effective date,” as used in § 5110(a), refers only
to the date that service-connected disability payments commence, not the date of
disability. Leonard again appears to be arguing semantics. Regardless whether
“effective date” refers to the date that disability payments are set to commence or the
actual date of disability, § 5110(a) makes clear that a veteran cannot receive service-
connected disability payments “earlier than the date of receipt of application therefor.”
Here, the pertinent date is when Leonard filed his current claim to reopen for an earlier
effective date. No matter how Leonard tries to define “effective date,” the simple fact is
that, absent a showing of CUE, he cannot receive disability payments for a time frame
earlier than the application date of his claim to reopen, even with new evidence
supporting an earlier disability date.
04-7139 -6-

-- 7 of 8 --

To hold otherwise would also vitiate the rule of finality, which we expounded upon
in Cook, 318 F.3d at 1337-42. In that opinion, we explained that the “purpose of the
rule of finality is to preclude repetitive and belated readjudications of veterans’ benefits
claims.” Id. at 1339. Under the interpretation of “effective date” sought by Leonard, his
own counsel concedes that veterans could continually raise new claims for retroactive
compensation by providing new evidence supporting an earlier disability date. That is
not the correct result, and it is contrary to § 5110(a).
In August 1994, the Board issued a decision assigning Leonard a TDIU rating,
effective September 23, 1985. It was then that Leonard could have tried to obtain an
earlier effective date by appealing that decision to the Veterans’ Court, but Leonard
allowed that opportunity to pass. Absent a showing of CUE, Leonard cannot now seek
an earlier effective date and have a proverbial “second bite at the apple.” Indeed, as
the record indicates, Leonard later attempted to reopen his claim for an earlier effective
date by alleging CUE. The Board, however, in a March 2000 decision found no CUE in
its August 1994 decision that granted an effective date of September 1985, and
Leonard did not appeal that decision either. Leonard, 17 Vet. App. at 449.
We have considered Leonard’s remaining arguments and find them
unconvincing.
CONCLUSION
The Veterans’ Court did not err in denying Leonard’s request for an effective date
prior to September 23, 1985, for the appellant’s TDIU rating. Accordingly, the decision
of that court is
AFFIRMED.
04-7139 -7-

-- 8 of 8 --