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 United States Court of Appeals for the Federal Circuit

                                       05-7187


                                GLENN H. JACKSON,

                                                     Claimant-Appellant,

                                          v.

                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                     Respondent-Appellee.



      Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.

       Todd M. Hughes, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent-appellee. On
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
Donald E. Kinner, Assistant Director, and David B. Stinson, Attorney. Of counsel on the
brief were David J. Barrans, Deputy Assistant General Counsel, and Ethan G. Kalett,
Attorney, United States Department of Veterans Affairs, of Washington, DC.


Appealed from: United States Court of Appeals for Veterans Claims

Judge Lawrence B. Hagel
 United States Court of Appeals for the Federal Circuit

                                        05-7187

                                 GLENN H. JACKSON,

                                                              Claimant-Appellant,

                                            v.


                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                              Respondent-Appellee.

                           ___________________________

                           DECIDED: June 1, 2006
                           ___________________________


Before MAYER, BRYSON and DYK, Circuit Judges.

DYK, Circuit Judge.

      Appellant Glenn H. Jackson (“Jackson”) appeals the decision of the Court of

Appeals for Veterans Claims (“Veterans Court”).       The Veterans Court affirmed the

Board of Veterans’ Appeals (“Board”) decision denying entitlement to an effective date

earlier than October 18, 2000, for a service connected low-back disability. Because we

agree with the Veterans Court and the Board that the term “appellate decision” in 38

C.F.R. § 3.156(b) refers only to a decision by the Board, we affirm.

                                    BACKGROUND

      Jackson served on active duty in the U.S. Army from June 1969 to December

1970. On September 10, 1996, he filed a request to reopen a previously disallowed

claim for a service connected low-back disability. The regional office (“RO”) denied the
request.   Jackson appealed the decision to the Board, and the Board affirmed on

November 10, 1998. The Veterans Court affirmed the Board’s decision on July 25,

2000, and in a September 19, 2001, decision, we affirmed the decision of the Veterans

Court. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Jackson v. Gober, 17 Vet.

App. 390 (Vet. App. 2000) (Table decision).

      While the appeal was pending before our court, Jackson, on October 17, 2000,

submitted new evidence to the regional office in another attempt to re-open the low

back claim. Based on this new evidence, the regional office reopened his claim, but

assigned an effective date of October 18, 2000. Jackson appealed the RO’s decision to

the Board, arguing that the RO should have assigned an effective date of September

10, 1996, the date on which he filed his original request to reopen because he filed his

new evidence before this court rendered its decision. He relied on 38 C.F.R § 3.156(b),

under which new and material evidence received prior to an “appellate decision” is

“considered as having been filed in connection with the claim which was pending at the

beginning of the appeal period.” The Board denied the earlier effective date because it

interpreted the phrase “appellate decision” to refer only to a decision of the Board as

opposed to a decision by the Veterans Court or our court. Accordingly, the “new and

material evidence” filed on October 17, 2000 was not considered as having been filed in

connection with the September 10, 1996, request to reopen, because it was submitted

after the Board’s November 1998 “appellate decision.” J.A. at 2. If the Board had

construed “appellate decision” to refer to this court’s September 2001 decision, Jackson

would have been entitled to the 1996 effective date.




05-7187                                   2
       Jackson appealed the Board’s decision to the Veterans Court, arguing that the

term “appellate decision” includes decisions by the Veterans Court and our court. The

Veterans Court affirmed the Board’s decision on July 1, 2005, reasoning that the history

of the regulation, and the regulatory and statutory context in which it appears, shows

that “appellate decision” referred only to a decision by the Board. [JA 3-6] On August

18, 2005, Jackson timely appealed.         We have jurisdiction pursuant to 38 U.S.C.

§ 7292(a) and (c).

                                       DISCUSSION

       The Board’s jurisdictional statute, 38 U.S.C. § 7104(b) provides that “[e]xcept as

provided in section 5108 of this title, when a claim is disallowed by the Board, the claim

may not thereafter be reopened and allowed and a claim based upon the same factual

basis may not be considered.” Section 5108 requires the Secretary to reopen a claim

“[i]f new and material evidence is presented or secured with respect to a claim which

has been disallowed . . . .” 38 U.S.C. § 5108 (2000). 38 U.S.C. § 5110(a) provides that

“the effective date of an award based on . . . a claim reopened after final

adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier

than the date of receipt of application therefor.” 38 U.S.C. § 5110(a) (2000) (emphasis

added). In Sears v. Principi, 349 F.3d 1326, 1330-31 (Fed. Cir. 2003), we upheld a

Department of Veterans Affairs (“VA”) regulation that treats a request to reopen for new

and material evidence as the “application therefor” referred to in section 5110(a), and

thus treats the date of the request to reopen as the effective date.1




       1
             In contrast, a decision to reopen a claim based on clear and unmistakable
error (“CUE”) “has the same effect as if the decision had been made on the date of the


05-7187                                      3
       The regulation at issue here, section 3.156(b), provides in pertinent part:

       New and material evidence received prior to the expiration of the appeal
       period, or prior to the appellate decision if a timely appeal has been filed
       (including evidence received prior to an appellate decision and referred to
       the agency of original jurisdiction by the Board of Veterans Appeals
       without consideration in that decision in accordance with the provisions of
       § 20.1304(b)(1) of this chapter), 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) (2004) (emphasis added). In other words, if a claim is reopened

based on new and material evidence presented before an “appellate decision,” the

effective date of the claim will be the date of the original request to reopen. The term

“appellate decision” is not defined in section 3.156(b) or elsewhere in title 38 of the

Code of Federal Regulations. As the petitioner appears to concede, the language of the

regulation is ambiguous as to whether the regulation is referring to an “appellate

decision” of the Board or an “appellate decision” of the courts on judicial review. See

Pet. Reply Br. at 4-6. We agree with the government that “appellate decision” in this

regulation refers to the final appellate decision of the Board.

       First, at the time the regulation was promulgated in 1961, the only appeal

available within the veterans’ benefits system was to the Board. See 26 Fed. Reg.

1561, 1570-71 (Feb. 24, 1961). Judicial review of Board decisions by the Veterans

Court and the Federal Circuit was not made available until the 1988 enactment of the

Veterans’ Judicial Review Act. See 38 U.S.C. §§ 101, et. seq. Therefore, at the time

section 3.156(b) was promulgated, “appellate decision” could only have meant a

decision by the Board.


prior decision.” 38 U.S.C. §§ 5109A(a), 7111(b) (2000); see Cook v. Principi, 318 F.3d
1334 (Fed. Cir. 2002) (en banc).



05-7187                                     4
       Second, Jackson concedes that the term “appellate decision” is used elsewhere

in the regulations to refer to decisions of the Board.2       Jackson has not cited any

provision of title 38 in which the term “appellate decision” is used to refer a decision by

an entity other than the Board, and we see no compelling reason that the term should

have a different meaning in section 3.156 than it does elsewhere in the regulations.

       Third, even within section 3.156(b) itself, the term “appellate decision” is used to

refer to a Board decision. The parenthetical in section 3.156(b) provides that new and

material evidence “includ[es] evidence received prior to an appellate decision and

referred to the agency of original jurisdiction by the Board of Veterans Appeals without

consideration in that decision in accordance with the provision of § 20.1304(b)(1) of this

chapter . . . .” 38 C.F.R. § 3.156(b) (emphases added). “Appellate decision” within the

parenthetical clearly refers to a decision by the Board. That is a strong indication that it

carries the same meaning outside the parenthetical.3



       2
               See 38 C.F.R. § 19.9(a) (2004) (requiring Board to remand to agency if
agency action is essential to appellate decision); 38 C.F.R. §§ 20.400-401(a) (2004)
(providing that when a claimant joins an administrative appeal (by an official of the VA)
the appellate decision on the merged appeal constitutes the final disposition of the
claimants rights); 38 C.F.R. § 20.904 (2004) (permitting vacatur of appellate decision
involving due process violations or submission of false or fraudulent evidence); 38
C.F.R. § 20.1000 (permitting Board reconsideration of appellate decision); 38 C.F.R. §§
20.1104-1105 (2004) (providing that appellate decision which affirms agency
determination subsumes the agency determination); 38 C.F.R. § 20.1201 (2004)
(providing for amendment of appellate decision upon request under special
circumstances); 38 C.F.R. 20.1301(a) (2004) (providing for disclosure of full text of
appellate decision to appellants); 38 C.F.R. § 20.1304(a) (2004) (providing for change in
representation, request for a personal hearing, or submission of additional evidence
prior to appellate decision).
       3
              The petitioner concedes that the regulation to which the parenthetical
refers, section 20.1304, uses “appellate decision” to refer to a Board decision. See Pet.
Br. at 6-7.



05-7187                                     5
      Finally, the petitioner has failed to make a showing that the effective date of a

claim should depend on the happenstance of the filing of an unsuccessful court appeal.

Rather, we think that interpreting “appellate decision” to refer to Board decisions is

consistent with the purpose of the statutory scheme. The purpose of the “new and

material evidence” provision is to permit veterans to reopen their claims by submitting

new and material evidence to the Department of Veterans Affairs (“VA”), which has the

authority to reopen claims. Once the VA action has become final by the issuance of a

Board decision, and the matter has been appealed to the Veterans Court, the VA loses

jurisdiction over the request to reopen. See Graves v. Principi, 294 F.3d 1350, 1352

(Fed. Cir. 2002) (“[I]t may happen that a motion for reconsideration of a Board decision

is filed after an appeal has been timely filed with the Veterans Court. In that situation,

jurisdiction over the case already has passed to the Veterans Court.”) (citing Griggs v.

Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)).           The VA can reacquire

jurisdiction only if the Veterans Court or this court remands the matter to the VA, or a

new application to reopen is filed with the VA itself. If a case is remanded to the VA by

either the Veterans Court or this court for further adjudication and the issuance of a new

Board decision, and new and material evidence has been submitted while the case is

still on appeal in the court system, the effective date of the claim may be measured by

the date on which the request to reopen was first filed. Under these circumstances, the

original proceeding has not been terminated.4 But where, as here, the VA reacquires

jurisdiction only by the filing of a new request to reopen, we think it would be

      4
              We express no opinion as to whether, while the matter is on appeal to the
court, a claimant could request a remand for the sole purpose of enabling the VA to
consider the new evidence.



05-7187                                    6
anomalous--absent some fault by the VA--to treat the newly filed request as having the

effective date of the older (finally rejected) request, and we do not read the regulation as

introducing such an anomaly into the system.5

                                      CONCLUSION

       For the foregoing reasons, we agree with the Board and the Veterans Court that

the term “appellate decision” in section 3.156(b) refers to a Board decision and not a

subsequent judicial decision. The decision of the Veterans Court is affirmed.

                                       AFFIRMED.

                                         COSTS

       No costs.




       5
              We note that the regulation does provide for a “retroactive” date in limited
circumstances where, for example, records have been misplaced. 38 C.F.R. § 3.156(c).
We need not decide in this case whether there are other situations (not encompassed
by the regulations) in which errors by the VA would require an earlier effective date for a
new and material evidence claim.


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