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RESPONDENT'SBRIEF

BRIEF FOR RESPONDENT-APPELLEE

IN THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

2007-7152

MICHAEL R. BAXENDALE,

e%_,5%_ __% Claimant-Appellant,

_n-- R. JAMES NICHOLSON,

_cretary of Veterans Affairs,

_ _ Respondent-Appellee.

ON APPEAL FROM

THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS IN

04-2492, JUDGE MARY J. SCHOELEN

PETER D. KEISLER

Assistant Attorney General

OF COUNSEL:

MICHAEL J. TIMINSKI

Deputy Assistant

General Counsel

MARTIE ADELMAN

Attorney

Department of Veterans

Affairs

810 Vermont Ave., N.W.

Washington, D.C. 20420

JEANNE E. DAVIDSON

Director

MARTIN F. HOCKEY, JR.

Assistant Director

ROBERT E. CHANDLER

Trial Attorney

Commercial Litigation Branch

Civil Division

Department of Justice

Attn: Classification Unit

ii00 L Street, N.W.

Washington, D.C. 20530

Tale: (202) 514-4678

Attorneys for Respondent-

Appellee

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ......................................... ii

STATEMENT OF COUNSEL ......................................... iv

STATEMENT OF THE ISSUES ....................................... 1

STATEMENT OF THE CASE ......................................... 2

I. Nature Of The Case .................................. 2

II. Statement Of Facts And Course Of Proceedings

Below ............................................... 2

SUMMARY OF THE ARGUMENT ....................................... 6

ARGUMENT ...................................................... 7

I. Standard And Scope Of Review ........................ 7

II. This Court Does Not Have Jurisdiction To Consider Mr.

Baxendale's Argument ................................ 9

III. VA Does Not Have A Duty To Obtain A Medical Opinion To

Determine Whether A Claimant Is Entitled To An Earlier

Effective Date When The Existing Evidence Of Record

Provides A Sufficient Basis To Assign An Effective

Date ............................................... I0

A. The Veterans Court's Decision Is Consistent With

38 C.F.R. § 3.103(a) .......................... I0

B. The Veterans Court's Decision Is Consistent With

38 U.S.C. § 5103A ............................. 13

IV. Mr. Baxendale's Argument Regarding Section 5110 And Its

Implementing Regulation Is Without Merit ........... 16

CONCLUSION ................................................... 20

TABLE OF AUTHORITIES

CASES

Baxendale v. Principi,

18 Vet. App. 419 (2003) .................................. 4

Chrysler Corp. v. Brown,

441 U.S. 281 (1979) ..................................... 12

Dalton v. Nicholson,

21 Vet. App. 23 (2007) .............................. 16, 18

Denis v. Liberty Mut. Ins. Co.,

791 F.2d 846 (llth Cir. 1986) ........................... 19

Dinqess v. Nicholson,

19 Vet. App. 473 (2006), aff'd, Nos. 06-7247 & 7312 (Fed.

Cir. June 5, 2007) ....................................... 5

Dixon v. United States,

381 U.S. 68 (1965) ...................................... 14

Ernst & Ernst v. Hochfelder,

425 U.S. 185 (1976) ..................................... 14

Gobber v. Derwinski,

2 Vet. App. 470 (1992) .............................. ii, 16

Hilkert v. West,

12 Vet. App. 145 (1999) ................................. II

In re Watts,

354 F.3d 1362 (Fed. Cir. 2004) .......................... 19

Manhattan Gen. Equip. Co. v. Commissioner of Internal Revenue,

297 U.S. 129 (1936) ..................................... 14

Michael R. Baxendale v. Anthony J. Principi, Secretary of

Veterans Affairs,

No. 99-159, 2001 U.S. App. Vet. Claims LEXIS 1,048 (Vet.

App. Aug. 9, 2001) ....................................... 3

ii

Michael R. Baxendale v. R. James Nicholson, Secretary of Veterans

Affairs,

No. 04-2492 (Vet. App. Dec. 13, 2006) .................... 2

Prenzler v. Derwinski,

928 F.2d 392 (Fed. Cir. 1991) ............................ 8

Quarles v. Derwinski,

3 Vet. App. 129 (1992) .................................. 18

Scott v. Brown,

7 Vet. App. 184 (1994) .................................. 18

United States v. Vogel Fertilizer Co.,

455 U.S. 16 (1981) ...................................... 14

STATUTES

38 C.F.R. § 3.103(a) ..................................... passim

38 C.F.R. § 3.155(a) .......................................... 6

38 C.F.R. § 3.400(o)(2),Section 3.400(0) (2) ............ 3, 4, 17

38 U.S.C. § 5103(a) ........................................... 6

38 U.S.C. § 5103A ........................................ passim

38 U.S.C. § 5107(a) .......................................... 16

38 U.S.C. § 5110(b) (2) ........................... 17, 18, 19, 20

38 U.S.C. § 7292(a) .................................... 8, 9, ii

38 U.S.C. § 7292(d) (i) . Section 7292(d) (2) .................... 9

38 U.S.C. § 7292 (e) (i) ...................................... 9

38 U.S.C. § 7929(d)(2) ....................................... 10

Pub. L. No. 106-475, 114 Stat. 2096 ........................... 3

iii

STATEMENT OF COUNSEL

Pursuant to Rule 47.5, respondent-appellee's counsel states

that this action was previously before this Court as Michael R.

Baxendale v. Anthony J. Principi, Secretary of Veterans Affairs,

No. 02-7148, 2004 U.S. App. LEXIS 12,749 (Fed. Cir. June 9,

2004), in which this Court granted appellant's unopposed motion

to voluntarily dismiss his appeal. Respondent-appellee's

counsel states that he is unaware of any case pending before

this Court which will directly affect or be directly affected by

this Court's decision in this appeal.

iv

BRIEF FOR RESPONDENT-APPELLEE

IN THE UNITED STATES COURTOF APPEALSFOR THE FEDERALCIRCUIT

2007-7152

MICHAEL R.

v.

BAXENDALEClaimant -Appellant,

R. JAMES NICHOLSON,

Secretary of Veterans Affairs,

Respondent-Appellee.

STATEMENT OF THE ISSUES

i. Whether this Court has jurisdiction to consider

Mr. Baxendale's contention that the Department of Veterans

Affairs ("VA") did not comply with 38 C.F.R. § 3.103(a).

2. Whether the United States Court of Appeals for Veterans

Claims ("Veterans Court") properly determined that VA did not

have a duty to obtain a medical opinion to determine whether

Mr. Baxendale's service-connected disability worsened in the

year prior to the date VA received his claim for an increased

rating.

STATEMENT OF THE CASE

I. Nature Of The Case

The appellant, Michael R. Baxendale, appeals the

December 13, 2006, decision of the Veterans Court in Michael R.

Baxendale v. R. James Nicholson, Secretary of Veterans Affairs,

No. 04-2492 (Vet. App. Dec. 13, 2006), which affirmed an

October 29, 2004, decision of the Board of Veterans' Appeals

(the "board") denying entitlement for an effective date earlier

than August 17, 1992, for a i00 percent disability rating for

his service-connected post-traumatic stress disorder ("PTSD").

II. Statement Of Facts And Course Of Proceedings Below

Mr. Baxendale had active.duty service in the United States

Marine Corps from February 1969 to August 1970. JA i. 1 In

August 1991, the VA regional office ("RO") awarded Mr. Baxendale

an increased disability rating of 50 percent for his service-

connected PTSD. JA i. On January 4, 1993, VA received a letter

from Mr. Baxendale's attorney, requesting that the RO accept his

letter as a request for an increased rating. JA 1-2. In a

December 1995 decision, the RO increased the disability rating

to 100 percent, effective January 4, 1993. JA 2.

On February 5, 1996, the RO received a notice of

disagreement ("NOD") from Mr. Baxendale's attorney regarding the

1 "JA" refers to the joint appendix filed in this case.

RO's December 1995 decision. JA 2. In an October 1998

decision, the board awarded an effective date of August 17,

1992, for the i00 percent rating for PTSD because that "was 'the

earliest date on which it was factually ascertainable'" that

Mr. Baxendale's disability had increased. JA 2. A VA

psychiatrist's memorandum dated August 17, 1992, stated that

Mr. Baxendale "should not work because any change in his stress

level would seriously harm his tenuous emotional state." JA 2.

Because the psychiatrist's memorandum was dated within one year

prior to Mr. Baxendale's January 4, 1993 increased-rating claim,

the board assigned an effective date of August 17, 1992, as

provided in 38 C.F.R. _ 3.400(0) (2) .2 JA 2.

Mr. Baxendale twice appealed to the Veterans Court, which

remanded each time for the board to consider VA's compliance

with the Veterans Claims Assistance Act of 2000 ("VCAA"), Pub.

L. No. 106-475, 114 Stat. 2096. Michael R. Baxendale v. Anthony

J. Principi, Secretary of Veterans Affairs, No. 99-159, 2001

r

U.S. App. Vet. Claims LEXIS 1,048 (Vet. App. Aug. 9, 2001);

Baxendale v. Principi, 18 Vet. App. 419 (2003) (table); JA 2.

2 Section 3.400(o)(2) of title 38,'Code of Federal

Regulations, states that the effective date of an increase

in disability compensation is "[e]arliest date as of which

it is factually ascertainable that an increase in

disability had occurred if claim is received within 1 year

from such date otherwise, date of receipt of claim."

On October 29, 2004, the board issued a decision finding

that Mr. Baxendale filed his claim for an increased rating on

January 4, 1993. JA 2, 60. The board also found that VA

provided notice as required by the VCAA. JA 54-57. The board

found that it was not necessary for VA to obtain a medical

opinion to determine whether an increase in disability was

factually ascertainable in the one year prior to the date on

which Mr. Baxendale's increased-rating claim was filed because

"the evidence of record was 'sufficient to establish the

necessary factual basis' for [its] conclusions" and any opinion

rendered 14 years after the claim was filed would be "purely

speculative." JA 3 (quoting JA 57). The board found that

August 17, 1992, the date of the VA psychiatrist's report, was

the earliest date on which the record indicated that a

disability rating in excess of 50 percent was warranted for

Mr. Baxendale's PTSD. JA 3, 60-61. The board therefore

concluded that, under 38 C.F.R. § 3.400(o) (2), the effective

date for Mr. Baxendale's i00 percent disability rating was

August 17, 1992. JA 3, 53, 63.

In a December 1!, 2006 decision, the Veterans Court

rejected Mr. Baxendafe's argument that VA had a duty to assist

by obtaining a "'retrospective' medical opinion" to determine

whether his PTSD increased in severity in the one year prior to

his January 4, 1993 increased-rating claim. JA 3, 4-5. The

4

Veterans Court affirmed the board's conclusion that there was

sufficient medical evidence in the record to declde

Mr. Baxendale's contention that he was entitled to an earlier

effective date for the i00 percent rating without obtaining a

new medical opinion. JA 5. The Veterans Court stated that

"[t]he board reviewed the extensive records of treatment in 1991

and 1992 before finding that the August 17, 1992 VA

psychiatrist's report was the earliest evidence of record

indicating an increase in disability." JA 5. The Veterans

Court found that, in light of this evidence and Mr. Baxendale's

failure to discuss why the evidence of record was insufficient,

the board's conclusion that there was sufficient evidence to

decide the claim is not clearly erroneous. JA 5.

The Veterans Court next found that Mr. Baxendale's claim

for an increased rating was substantiated in December 1995,

prior to enactment of the VCAA, when the RO awarded a

I00 percent rating with an effective date. JA 6. The Veterans

Court therefore found that 38 U.S.C. § 5103(a) is not applicable

to Mr. Baxendale's claim. JA 6; see Din@ess v. Nicholson, 19

Vet. App. 473, 490 (2006), aff'd, Nos. 06-7247 & 7312 (Fed. Cir.

June 5, 2007).

The Veterans Court also rejected Mr. Baxendale's argument

that the board misapplied 38 C.F.R. § 3.155(a) by not finding

that May 8, 1992, was the date on which he filed an informal

5

claim for an increased rating. JA 7. The Veterans Court found

no error in the board's application of the presumption of

regularity because Mr. Baxendale did not point to any clear

evidence to rebut the presumption of regularity. JA 7. The

Veterans Court therefore affirmed the board's decision. JA I,

9.

The Veterans Court issued its judgment on January 5, 2007,

and Mr. Baxendale filed his notice of appeal to this Court on

February 20, 2007. JA 10, II.

SUMMARY OF THE ARGUMENT

This Court does not have jurisdiction to consider

Mr. Baxendale's argument that the Veterans Court erred in

affirming the board's finding that VA fulfilled its duty to

assist him in developing the facts pertinent to his request for

an earlier effective date under 38 C.F.R. § 3.103(a), because it

involves factual determinations and the Veterans Court's

application of section 3.103(a) to the facts of his case.

Assuming for purposes of argument that this Court has

jurisdiction to consider Mr. Baxendale's argument, the general

statement in 38 C.F.R. § 3.103(a) that VA is obligated to

"assist a claimant in developing the facts pertinent to the

claim," does not support his argument that VA was required to

obtain a medical opinion to determine whether his disability

became totally disabling prior to August 17, 1992, the effective

6

date assigned by the board for his increased rating. 3 The

Veterans Court properly affirmed the board's finding that it was

not necessary to obtain such an opinion because the evidence of

record was sufficient to establish the necessary basis for its

effective-date finding and such an opinion would be speculative.

The Veterans Court's conclusion that VA does not have a

duty to obtain a medical opinion to determine whether

Mr. Baxendale's disability increased in the year before he filed

his increased rating claim is consistent with 38 U.S.C. § 5103A.

ARGUMENT

I. Standard and Scope of Review.

Pursuant to 38 U.S.C. § 7292(a), this Court has

jurisdiction to review a Veterans Court decision with respect to

the validity or interpretation of any statute or regulation

relied upon by that court in making that decision or with

respect to the validity of the decision on a rule of law. In

3 Mr. Baxendale's brief is inconsist#nt in its assertion of

the date that should_be the starting point for the one-year

period for retroactive determination' of his disability

increase. He argues fat various points that VA was

obligated to provide a medical opinion as to whether his

disability increased 'in the one year!prior to the date of

his increased-rating Iclaim, which was January 4, 1993.

Appellant's Brief ("Abp. Br.") at 1, 4-5, 17. At other

points in his brief, however, Mr. Baxendale contends that

he was entitled to a retrospective opinion concerning

whether his disability increased in the one year prior to

August 17, 1992, the date of the VA opinion upon which the

board relied to assign the effective date of the increased

rating. App. Br. at 15, 18.

reviewing a Veterans Court decision, the Court must decide "all

relevant questions of law, including interpreting constitutional

and statutory provisions" and must set aside any regulation or

interpretation thereof "other than a determination as to a

factual matter" relied upon by the Veterans Court that it finds

to be "(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; (B) contrary to

constitutional right, power, privilege, or immunity; (C) in

excess of statutory jurisdiction, authority, or limitations, or

in violation of a statutory right; or (D) without observance of

procedure required by law." 38 U.S.C. § 7292(d) (i).

Section 7292(d) (2) of title 38, United States Code, provides

that, except to the extent that an appeal from a Veterans Court

decision presents a constitutional issue, this Court "may not

review (A) a challenge to a factual determination, or (B) a

challenge to a law or regulation as applied to the facts of a

particular case."

This Court may review legal determinations of the Veterans

Court under a de novo standard. Prenzler v. Derwinski, 928 F.2d

392, 393 (Fed. Cir. 1991). Upon such review, the Court may

"affirm or, if the decision of the [Veterans Court] is not in

accordance with law, modify or reverse the decision of the

[Veterans Court] or remand the matter, as appropriate."

38 U.S.C. § 7292(e)(i).

II. This Court Does Not Have Jurisdiction To ConsiderMr. Baxendale's Argument

Mr. Baxendale contends that the Veterans Court

"misinterpreted" 38 C.F.R. § 3.103(a) by finding that VA was not

required to assist in the development of his claim, for an

earlier effective date for his i00 percent disability rating, by

obtaining a medical opinion regarding whether his disability

increased in the year prior to the date on which his claim for

an increased rating was filed. App. Br. at 5-6, 15-16. Under

section 3.103(a), VA is required to "assist a claimant in

developing facts pertinent to the claim." Mr. Baxendale argues

that one of the ways in which VA could have developed facts

pertinent to his claim was to obtain a "retrospective" medical

opinion concerning whether his disability increased prior to

August 17, 1992. App. Br. at 15.

This Court does not have jurisdiction to consider

Mr. Baxendale's argument because the question of whether VA

complied with 38 C.F.R. § 3.103(a) is a matter involving factual

determinations and application of law to the facts ofI

Mr. Baxendale's case. 38 U.S.C. § 7929(d) (2). The board found

that the RO obtained !"all relevant evidence necessary for an

equitable disposition of the veteran's claim for an earlier

effective date for" the I00 percent disability rating. JA 52.

In addition, the board found that "the evidence of record

is sufficient to establish the necessary factual basis for its

conclusions" and that any opinion rendered 14 years after the

increased-rating claim was filed "would be speculative." JA 57.

The Veterans Court held that the board's findings are

"supported by substantial evidence of record." JA 5. The

Veterans Court further found:

The Board reviewed the extensive records of treatment

in 1991 and 1992 before finding that the August 17,

1992, VA psychiatrist's report was the earliest

evidence of record indicating an increase in

disability. [Citations omitted] In light of this

evidence and the appellant's failure to discuss why it

was insufficient, the Board's conclusion that there

was sufficient medical evidence of record to decide

the claim is not clearly erroneous and, therefore,

remand for a new VA medical opinion is not warranted.

JA 5. It is clear that Mr. Baxendale's appeal involves a

challenge to these factual findings and to the Veterans

Court's application of law to the facts of his case. This

Court does not have jurisdiction to consider such matters,

as provided in 38 U.S°C. § 7292(d), and should therefore

decline to consider Mr. Baxendale's appeal.

III. VA Does Not Have A Duty To Obtain A Medical Opinion To

Determine Whether A Claimant Is Entitled To An Earlier

Effective Date When The Existing Evidence Of Record

Provides A Sufficient Basis To Assign An Effective Date

I

A. The Veterans Court's Decision Is Consistent

With 38 C°F.R. 3.103

Assuming for purposes of argument that this Court has

jurisdiction to consider Mr. Baxendale's argument that VA was

I0

obligated under 38 C.F.R. § 3.103(a) to obtain a medical opinion

to determine whether his disability increased prior to August

17, 1992, Mr. Baxendale's claim is without merit. App. Br. at

15, 18. Section 3.103(a) of title 38, Code of Federal

Regulations, states generally that "it is the obligation of VA

to assist a claimant in developing the facts pertinent to the

claim and to render a decision which grants every benefit that

can be supported in law while protecting the interests of the

Government." Nothing in this general statement suggests that VA

was required to obtain a medical opinion regarding whether

Mr. Baxendale's PTSD became totally disabling prior to

August 17, 1992, in the absence of any suggestion by

Mr. Baxendale that such evidence existed. 4

The duty to assist requires VA to assist claimants, rather

than to unilaterally seek out and develop all possible sources

of evidence. See Hilkert v. West, 12 Vet. App. 145, 151 (1999 ;

Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's duty to

assist does not encompass "a duty to prove a claim with the

claimant only in a passive role"). If the evidence of record in

4 The board found that "_[t]here is no indication that any

pertinent evidence was not received, which is obtainable,"

and that Mr. Baxendale's representative "has not identified

any specific evidence' to;be obtained." JA 54. The board

found that VA had obtained "extensive VA outpatient recordsI ,

and VA examinations reports' covering the relevant period,

as well as Mr. Baxendale's records from the Social Security

Administration. JA 54.

Ii

a particular case provides a sufficient basis to assign an

effective date or if a claimant does not point to evidence

indicating that he or she was disabled in the year prior to the

date of the claim, the duty to assist does not require VA to

request a wholly speculative medical opinion regarding the

issue.

The statement in 38 C.F.R. § 3.103(a), that it is VA's

obligation "to assist a claimant in developing the facts

pertinent to the claim," is identified in the heading of

section 3.103(a) as a "[s]tatement of policy" and does not

purport to define the scope or application of VA's duty to

assist. See generally Chrysler Corp. v. Brown, 441 U.S. 281,

302 n.31 (1979) (suggesting that general statements of policy do

not have force and effect of law and are issued by agency to

advise public prospectively of manner in which agency proposes

to exercise discretionary power). In stating its policy to

provide assistance to claimants, VA did not indicate that it was

unconditionally required to assist claimants without regard to

whether a particular assertion by a claimant was plausible or

r

reasonably capable of substantfation _ The general policy stated

in section 3.103(a), therefore, is most reasonably viewed in

harmony with the corresponding statutory provision governing the

VA's duty to assist, as explained, below.

12

B. The Veterans Court's Decision Is Consistent With38 U.S.C. § 5103A

Mr. Baxendale concedes that the Veterans Court rejected his

argument that, under 38 U.S.C. § 5103A(d), VA was required to

provide a medical opinion to determine whether he became totally

disabled prior to August 17, 1992. App. Br. at 5 n.2; JA 23,

32-34. Mr. Baxendale states in his opening brief filed with

this Court that the Veterans Court's "statutory interpretation

is correct and not challenged by this appeal. ''5 App. Br. at 5.

He instead argues before this Court that the Veterans Court

failed to take into consideration 38 C.F.R. § 3.103(a), which he

states is "apparently inconsistent with 38 U.S.C. § 5103A(d) (1)

and (2)." App. Br. at 15. He contends that 38 C.F.R.

§ 3.103(a) required VA to obtain a medical opinion to determine

whether he was entitled to an effective date prior to the date

established by the evidence of record. App. Br. at 6, 15-16.

Mr. Baxendale's argument is without merit.

s Mr. Baxendale errs in describing the Veterans Court's

holding with regard to 38 U.S.C. § 5103A. He states that

the Veterans Court "concluded that § 5103A(a) is limited to

existing records and that medical examinations under

§ 5103(d) [sic] are not available to claimants who seek anJ

increased rating." App. Br. at 5. In fact, the Veterans

Court rejected Mr. Baxendale's argument that VA has a duty

"to obtain records that he failed to identify to VA, [and]

that he cannot now identify to the Court." JA 4; see 38

U.S.C. § 5103A(b) (i). Th# Veterans Court affirmed the

board's finding that the_ record contained sufficient

medical evidence to decide Mr. Baxendale's request for an

earlier effective date. JA 5.

13

Every agency action must fit reasonably within the

statutory framework established by Congress. "The rulemaking

power granted to an administrative agency charged with the

administration of a federal statute is not the power to make

law. Rather, it is 'the power to adopt regulations to carry

into effect the will of Congress as expressed by the statute.'"

Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-14 (1976)

(quoting Dixon v. United States, 381 U.S. 68, 74 (1965), and

Manhattan Gen. Equip. Co. v. Commissioner of Internal Revenue,

297 U.S. 129, 134 (1936)). Moreover, an agency's regulation

must also be consistent with a governing statute's purpose and

design. Se___eeUnited States v. Vogel Fertilizer Co., 455 U.S. 16,

26 (1981).

Congress has specifically provided in 38 U.S.C.

§ 5103A(d) (I) that, "[i]n the case of a claim for disability

compensation," VA must provide a medical examination or obtain a

medical opinion when "necessary to make a decision on the

claim." The board found that there was sufficient competent

medical evidence in the record to decide whether Mr. Baxendale

was entitled to an earlier effective date for the i00 percent

disability rating, and the Veterans Court found that the board's

finding was not clearly erroneous. JA 5. Therefore, the

Veterans Court properly found that it was not "necessary" for VA

to obtain a medical opinion under 38 U.S.C. § 5103A(d) to

14

determine whether Mr. Baxendale's disability increased prior to

August 17, 1992.

Moreover, VA's duty to assist does not relieve Mr.

Baxendale from his "responsibility to present and support a

claim for benefits. ''6 38 U.S.C. § 5107(a). Congress has

provided in 38 U.S.C. § 5103A(a) (3) that VA may defer assistance

"pending the submission by the claimant of essential information

missing from the claimant's application," and Congress has

directed in 38 U.S.C. § 5103A(b) (I) that VA's obligation to

obtain "relevant records" extends only to records that "the

claimant adequately identifies." As the Veterans Court pointed

out, Mr. Baxendale "argues that it was VA's obligation to find

evidence indicating that his PTSD increased in severity prior to

August 17, 1992." JA 4. Mr. Baxendale did not point to any

evidence in existence showing an increase in disability prior to

that date, and in fact contended that "it is not his burden to

point out such records." JA 4, 54. Mr. Baxendale's argument

that 38 C.F.R. § 3.103(a) requires VA to undertake a fishing

expedition to determine whether any medical evidence can be

obtained to potentially support an effective date earlier than

6 Section 5107(a) of title 38, United States Code, states:

"Claimant responsibility. Except as otherwise provided by

law, a claimant has the responsibility to present and

support a claim for benefits under laws administered by the

Secretary."

15

that established by the existing evidence is at odds with title

38, United States Code. See Gobber, 2 Vet. App. at 472.

Therefore, 38 C.F.R. § 3.103(a) cannot be read in the manner

proposed by Mr. Baxendale.

IV. Mr. Baxendale's Argument Regarding Section 5110 And Its

Implementing Regulation Is Without Merit

Mr. Baxendale next contends that the Veterans Court

misinterpreted 38 U.S.C. § 5110(b) (2) and its implementing

regulation, 38 C.F.R. § 3.400(0)(2), by impermissibly shifting

the duty to develop evidence to support an earlier effective

date to him. App. Br. at 17. The statute and regulation

provide that the effective date of an award of increased

disability compensation is "the earliest date as of which it is

ascertainable that an increase in disability had occurred," if

the application for an increased rating is received within one

year from such date. 38 U.S.C. § 5110(b) (2); 38 C.F.R.

§ 3.400(o) (2). 7 Mr. Baxendale contends that the statute and

regulation required VA to develop facts pertinent to whether it

Lwas "ascertainable" that he was totally disabled prior to

August 17, 1992. App. Br. at 17-18. Mr. Baxendale argues that,r

Lin Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007), the Veterans

I

Thus, the earliest!possible effective date for7

Mr. Baxendale's increased! rating is January 4, 1992, which

is one year from January 4, 1993, the date on which he

filed the claim.

16

Court recognized that a veteran is entitled to consideration of

an effective date under section 5110(b) (2) when a claimant is

awarded an increased rating for a service-connected disability

and that "[t]he relationship between the VA's duty to assist

under . 38 C.F.R. § 3.103(a) is evident and required by the

plain language of 38 U.S.C. § 5110 (b) (2) . " App. Br. at 18.

We do not dispute that 38 U.S.C. § 5110(b)(2) is the

appropriate statutory provision for determining the effective

date of an increase in disability compensation. However, we

fail to see how the statute and its implementing regulation

require VA to obtain a medical opinion regarding whether

Mr. Baxendale is entitled to an effective date earlier than the

date found by the RO based on the evidence of record.

Also, Mr. Baxendale's reliance on Dalton is misplaced. In

Dalton, the Veterans Court held that a grant of a rating for

total disability based upon individual unemployability based

upon the worsening of a previously service-connected condition

that renders the veteran unable to secure or follow a

J

substantially gainfulloccupation is an award of increased

compensation for purposes of 38 U.S.C. § 5110(b) (2). 21 Vet.

App. at 34. The Veterans Court, in describing the board's

obligation to assist the claimant on remand, instructed thei

board "to search the record to determine whether it is factually

ascertainable that in the one year prior to application there

17

was an increase in disability." Id. (emphasis added). In

support of this statement, the Veterans Court cited Scott v.

Brown, 7 Vet. App. 184, 189 (1994), in which the court approved

the board's consideration of "'all the evidence of record'" for

the year preceding the claim to determine whether the veteran's

disability increased in severity. Id. (emphasis added).

There is no indication in Dalton or Scott that VA is

required under 38 U.S.C. § 5110(b) (2) or 38 C.F.R. § 3.400(0) (2)

to obtain a medical opinion to determine whether the onset of an

increase in disability occurred prior to the date established by

the evidence of record. Rather, these cases support the

Veterans Court's conclusion in Mr. Baxendale's case that VA was

not required to develop new evidence to determine whether he was

entitled to an earlier effective date. As the Veterans Court

held in this case, the board properly reviewed the extensive

record before concluding that the evidence did not support an

earlier effective date. JA5. In fact, the Veterans Court

stated in Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992),

that "evidence in a claimant's file which demonstrates that an

increase in disability was 'ascertainable' up to one year prior

to the claimant's submissionl of a 'claim' for VA compensation

should be dispositive on thelquestion of an effective date forI

any award that ensues." (Emphasls added). Thus, this Court

should affirm the Veterans Court's finding that VA had no duty

18

to develop evidence pertinent to an effective-date determination

under section 5110(b) (2) in Mr. Baxendale's case.

Finally, Mr. Baxendale argues that the Veterans Court's

decision relieving VA of its obligation to obtain a medical

opinion was prejudicial. App. Br. at 19-20. Mr. Baxendale has

failed to identify any existing evidence of entitlement to an

earlier effective date that VA failed to obtain. JA 4. In

addition, he fails to allege that he is in fact entitled to an

earlier effective date. Rather, as the Veterans Court pointed

out, Mr. Baxendale argues that it is "VA's obligation to find

evidence indicating that his PTSD increased in severity prior to

August 17, 1992." JA 4. As this Court has stated, "[t]he

purpose of the rule [of prejudicial error] is to avoid wasteful

proceedings on remand where there is no reason to believe a

different result would have been obtained had the error not

occurred." In re Watts, 354 F.3d 1362, 1369 (Fed. Cir. 2004).

Mr. Baxendale's assertion that VA was required to develop

evidence "'pertinent' to whether it was 'factually

ascertainable'" that his disability increased prior to

August 17, 1992, does not demonstrate that any VA error in fact

affected the effective date assigned by the RO. App. Br. at 18;

Denis v. Liberty Mut. Ins. Co., 791 F.2d 846, 850 n.6 (Ii th- Cir.

1986) (plaintiff "never asserted . that any additional

19

information existed that he could submit should he receive .

full notice").

CONCLUSION

For the foregoing reasons, this Court should dismiss

Mr. Baxendale's appeal or alternatively affirm the decision of

the Veterans Court.

Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

OF COUNSEL:

MICHAEL J. TIMINSKI

Deputy Assistant

General Counsel

MARTIE ADELMAN

Attorney

Department of Veterans

Affairs

810 Vermont Ave., N.W.

Washington, D.C. 20420

JEANNE E. DAVIDSON

Director

O reo or

ROBERT E. CHANDLER

Trial Attorney

Commercial Litigation

Branch

Civil Division

Department of Justice

Attn: Classification Unit

ii00 L Street, N.W.

Washington, D.C. 20530

Tele: (202) 514-4678

Attorneys for Respondent-

Appellee

June 12, 2007

2O

CERTIFICATE OF SERVICE

I hereby certify under penalty of perjury that on this/_day of June, 2007, I

caused to be placed in the United States mail (first-class, postage prepaid) copies

of"BRIEF FOR APPELLEE, R. JAMES NICHOLSON" addressed as follows:

Kenneth M. Carpenter

1525 Southwest Topeka Blvd.

Topeka, KS 66601