Criswell v. Nicholson, 2006

Before KASOLD, HAGEL, and SCHOELEN, Judges. 
HAGEL, Judge, filed the opinion of the Court.  KASOLD, Judge, filed a concurring opinion.
HAGEL, Judge:  James B. Criswell appeals through counsel a February 12, 2003, Board of Veterans' Appeals (Board) decision in which the Board denied him an effective date prior to August 21, 1997, for the assignment of a 50% combined disability rating for his service-connected coldinjury residuals of the hands and feet.  For the reasons provided in this opinion, the Court will affirm the February 2003 decision on appeal.
Upon consideration of the foregoing, the February 2003 decision on appeal is AFFIRMED.
KASOLD, Judge, concurring:  Mr. Criswell additionally argues that his August 1945 application, in conjunction with his claims file, supporting documents, and testimony, constitutes a claim for service connection for cold-weather residuals, which the 1947 VA regional office (RO) failed to process, leaving it unadjudicated until the July 1999 grant.  See App. Supp. Br. at 3-4. Although this argument is not addressed in the Court's opinion, I note that it is properly brought in a request for revision on the basis of clear and unmistakable error (CUE) and, furthermore, it should have been raised below and not for the first time on appeal.  See Deshotel v. Nicholson, 457 F.3d
1258, 1261-62 (Fed. Cir. 2006) (argument that RO failed to address all claims presented is properly brought as request for revision on the basis of CUE); Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005) (holding that the RO's failure to address an implied claim "is properly challenged through a CUE motion"); Jarrell v. Nicholson, 20 Vet.App. 326, 332 (2006) (en banc) (holding that a motion for revision on the basis of CUE in final RO decision must be presented to and adjudicated by the RO in order for the Board and the Court to review the matter on the merits); cf. Andre v. Principi, 301 F.3d 1354, 1362 (Fed. Cir. 2002) (holding that this Court had no jurisdiction to review appellant's challenge to 1973 RO decision on CUE grounds that were "entirely separate and distinct claims that the Board's decision [on appeal] had not addressed").   

  • Attachment(s): PDF
  • Organization: CAVC
  • Date Created: November 29, 2016
  • Last Updated: December 07, 2016
  • U.S. Court of Appeals for Veterans Claims Appeal