NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH C. DELLOSA,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7160
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1891, Judge Robert N. Davis.
______________________
Decided: September 11, 2013
______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
ALEX P. HONTOS, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. On the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, SCOTT D.
AUSTIN, Assistant Director. Of counsel on the brief were
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
and LARA K. EILHARDT, Attorney, United States Depart-
ment of Veterans Affairs, of Washington, DC.
2 DELLOSA v. SHINSEKI
______________________
Before NEWMAN, REYNA, and TARANTO, Circuit Judges.
Opinion for the court filed by Circuit Judge TARANTO.
Dissenting opinion filed by Circuit Judge REYNA.
TARANTO, Circuit Judge.
Joseph Dellosa, a veteran of the United States Navy,
seeks a medical examination from the Department of
Veterans Affairs in conjunction with his claim for service-
connected disability benefits. Both the Board of Veterans’
Appeals and the Court of Appeals for Veterans Claims
determined that Mr. Dellosa was not entitled to a VA
medical examination and denied his benefits claim on the
merits. We conclude that the Veterans Court, like the
Board, may well have applied an incorrect legal standard
under the statute that provides for medical examinations
in specified circumstances as part of the VA’s duty to
assist a claimant, 38 U.S.C. § 5103A(d)(2). We vacate the
Veterans Court decision and remand for reconsideration
using the correct standard.
BACKGROUND
Mr. Dellosa served in the Navy for a few months in
1984 before being discharged for failing to “adapt to the
naval environment.” In April 2006, he filed a claim for
benefits based on an allegation of disability caused by
service-connected depression. He contended that he had
been “exposed to a lot of traumatic events as a recruit”
and experienced symptoms like “intense fear, helpless-
ness, and . . . insomnia” as a result. The regional office
denied his claim in December 2006. When he appealed to
the Board, he specified that he was relying on bipolar
disorder.
The Board held a hearing in November 2010. Mr.
Dellosa testified that problems with his bipolar disorder
began in basic training, and he gave examples. He as-
serted that his bipolar disorder was related to his Navy
DELLOSA v. SHINSEKI 3
service because he had been “br[o]k[en] down,” which
“brought up anger and hostility . . . that [he] never
thought [he] had,” and he “came out as a different . . .
person,” with his life “turned . . . upside down.”
In February 2011, the Board issued a decision finding
that the Secretary’s duty to assist had been satisfied and
that Mr. Dellosa had failed to establish an entitlement to
benefits on the merits. As part of the duty-to-assist
analysis, the Board considered whether it was appropri-
ate to have denied Mr. Dellosa a medical examination
under 38 U.S.C. § 5103A(d). The Board stated that an
examination is proper only when, among other things,
there is “an indication that the current disability may be
related to” in-service events, and it found “no competent
evidence of record to support a finding that the Veteran’s
bipolar disorder is related to service.” The Board ex-
plained that, although Mr. Dellosa had “provided state-
ments that his bipolar disorder is related to service,” “the
record is silent for a nexus between [his] current disabili-
ties and his active service” because “he is not competent
to provide evidence of a diagnosis or etiology of a condi-
tion.” On the merits, the Board held that “the preponder-
ance of the evidence [wa]s against the claim for service
connection for a bipolar disorder disability.”
The Veterans Court affirmed. With respect to Mr.
Dellosa’s request for a medical examination, the court
found no error in the Board’s determination that 38
U.S.C. § 5103A(d)(2)(B) “was not met.” The Veterans
Court repeated the Board’s finding that “‘the record is
silent for a nexus between [Mr. Dellosa’s] current disabili-
ties and his active service,’” while also acknowledging
that there were “symptoms Mr. Dellosa state[d] he expe-
rienced in service and . . . ascribe[d] to his later-diagnosed
bipolar disorder.” Mr. Dellosa appeals, arguing that the
denial of a VA medical examination was based on a misin-
terpretation of 38 U.S.C. § 5103A(d).
4 DELLOSA v. SHINSEKI
DISCUSSION
A pair of 2010 decisions—Waters v. Shinseki, 601 F.3d
1274 (Fed. Cir. 2010), and Colantonio v. Shinseki, 606
F.3d 1378 (Fed. Cir. 2010)—explain the proper inquiry for
determining whether a veteran is entitled to a medical
examination under 38 U.S.C. § 5103A(d)(2) and guide our
analysis here. After confirming our jurisdiction, we
conclude that the Veterans Court may well have held Mr.
Dellosa to an improperly high standard (in adopting the
Board’s analysis). We therefore vacate and remand.
A
Our jurisdiction is limited by statute but includes re-
view of “any interpretation” of “any statute or regulation”
that was relied on in the decision on appeal. 38 U.S.C.
§ 7292(a). Under that authority, we have explained that
whether the Veterans Court misinterpreted the governing
statutory provisions is within our jurisdiction to review.
Waters, 601 F.3d at 1276. That is so even though we have
characterized the inquiry under 38 U.S.C. § 5103A(d)(2)
as factual after rejecting any allegation of legal error in
the standard that was applied. See, e.g., DeLaRosa v.
Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); Wells v.
Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003). At oral
argument, the government recognized our jurisdiction to
decide if the Veterans Court misinterpreted section
5103A(d)(2):
THE COURT: [W]e don’t lack jurisdiction here
any more than we did in Waters or Colantonio to
say that when the Board uses the term “compe-
tent evidence,” which is a term in the first re-
quirement and it’s not a term in the second
requirement, that it may well have confused
what’s required for the second element.
A: Certainly, if the extent of Mr. Dellosa’s argu-
ment is simply that the law was misinterpreted—
and that’s it—when it comes to 5103A(d)(2), that’s
a legal question. That the court can review.
DELLOSA v. SHINSEKI 5
Oral Argument at 13:52-14:49.
B
The duty-to-assist statute, 38 U.S.C. § 5103A(d)(2),
provides:
The Secretary shall treat an examination or opin-
ion as being necessary to make a decision on a
claim . . . if the evidence of record before the Sec-
retary, taking into consideration all information
and lay or medical evidence (including statements
of the claimant)—
(A) contains competent evidence that the claimant
has a current disability, or persistent or recurrent
symptoms of disability; and
(B) indicates that the disability or symptoms may
be associated with the claimant’s active military,
naval, or air service; but
(C) does not contain sufficient medical evidence
for the Secretary to make a decision on the claim.
We have held that subparagraphs A and B, because of
their different language, set different evidentiary stand-
ards: “competent” evidence is needed under A, but “medi-
cally competent evidence is not required in every case to
‘indicate’ that the claimant’s disability [or symptoms]
‘may be associated’ with the claimant’s service” under
subparagraph B. Colantonio, 606 F.3d at 1382; see also
Waters, 601 F.3d at 1277.
Based on that difference, we identified an apparent
erroneous interpretation of section 5103A(d)(2) in both
Waters and Colantonio. In Waters, we concluded that the
Board’s findings of “‘no competent evidence of a nexus’”
and “‘no competent medical evidence or record’ showing
the necessary nexus” “appeared to use the evidentiary
standard in subsection A in applying subsection B[,] thus
subjecting the veteran to a more onerous standard of
proof than the statute provides.” 601 F.3d at 1277. But
6 DELLOSA v. SHINSEKI
we held that the error was harmless because we inter-
preted the Veterans Court to have found that the veter-
an’s own “conclusory statements regarding causation were
insufficient” to meet subparagraph (d)(2)(B). Id. at 1277-
79.
In Colantonio, we reviewed statements from the Vet-
erans Court that “lay testimony ‘cannot provide the
requisite medical nexus between service and the appel-
lant’s current back disability,’ and that a lay person ‘is not
competent to opine on matters requiring medical
knowledge such as etiology of a condition or nexus.’” 606
F.3d at 1381. We determined that those assertions could
“be interpreted as meaning that a veteran’s lay testimony
can never be sufficient in itself to satisfy the nexus re-
quirement in section 5103A(d)(2)(B),” which would be
incorrect. Id. at 1381-82. Because the Veterans Court
“may have overstated the extent to which competent
medical evidence is required to make the minimal show-
ing of nexus required by subparagraph B,” we vacated
and remanded for reconsideration “in light of the proper
interpretation of section 5103A(d)(2).” Id. at 1382.
We reach the same conclusion and follow the same
course here that we did in Colantonio. The Board
acknowledged Mr. Dellosa’s “statements that his bipolar
disorder is related to service” but held that there was “no
competent evidence of record” to support such a finding
under section 5103A(d)(2)(B). Because Mr. Dellosa “is not
competent to provide evidence of a diagnosis or etiology of
a condition,” the Board explained, the record was “silent”
on the subparagraph B question. The Veterans Court
similarly acknowledged Mr. Dellosa’s testimony, but
repeated the Board’s finding of a “silent” record in affirm-
ing the Board’s (d)(2)(B) determination.
Those decisions “can be interpreted as” resting on “a
rule requiring medically competent evidence” under
subparagraph B. Colantonio, 606 F.3d at 1382. Neither
decision labels Mr. Dellosa’s testimony that “his bipolar
disorder is related to service” as conclusory. By finding
DELLOSA v. SHINSEKI 7
that those lay statements say nothing about the required
connection to service under subparagraph B simply be-
cause Mr. Dellosa “is not competent” to provide medical
testimony, the Board appears to have misinterpreted the
relevant standard. The Veterans Court did not identify
error in the Board’s analysis or ask whether it was harm-
less, Waters, 601 F.3d at 1277-79; on the contrary, the
court reaffirmed the Board’s conclusion. In these circum-
stances, a remand for reconsideration is warranted to be
certain that Mr. Dellosa is not held to “a more onerous
standard of proof than the statute provides.” Id. at 1277.
Our conclusion is not altered by the fact that Mr. Del-
losa’s lay testimony was later assessed on the merits of
the service-connection question and found, in the absence
of a VA medical examination, to be “outweighed” by other
evidence “showing no relationship between the Veteran’s
current bipolar disorder and service.” The duty-to-assist
statute allows for medical examinations in order to help
with the merits decision, and the merits analysis conceiv-
ably could be altered by the results of a VA medical
examination. Moreover, a finding that Mr. Dellosa’s
testimony was “outweighed” by other evidence is not the
same as a finding that his testimony was entitled to no
weight and that the record was thus “‘devoid of any
evidence’” on the (d)(2)(B) issue. Waters, 601 F.3d at
1277. How the medical examination question is decided
under the correct standard is not for us to say.
CONCLUSION
We vacate the Veterans Court’s decision and remand
for application of the correct statutory standard.
VACATED AND REMANDED
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH C. DELLOSA,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7160
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1891, Judge Robert N. Davis.
______________________
REYNA, Circuit Judge, dissenting.
The majority finds subject matter jurisdiction over
this appeal based on an apparent concession from the
government where it “recognized our jurisdiction” at oral
argument. I disagree on this informal granting of juris-
diction. It is well recognized that “no action of the parties
can confer subject-matter jurisdiction upon a federal
court. Thus, the consent of the parties is irrelevant . . . .”
Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee,
456 U.S. 694, 702 (1982); see also Cromer v. Nicholson,
455 F.3d 1346, 1348 (Fed. Cir. 2006) (recognizing that
even if neither party disputes this court’s subject matter
jurisdiction under 38 U.S.C. § 7292, we are obligated to
consider the issue sua sponte if there is reason to doubt
that jurisdiction exists). A more searching review of our
2 DELLOSA v. SHINSEKI
jurisdiction is required and, once performed, I conclude
that we lack jurisdiction to decide Mr. Dellosa’s appeal.
Accordingly, I respectfully dissent.
This court has held that the Board of Veterans’ Ap-
peals’ (“Board”) determination regarding the necessity of
a medical examination is a question of fact, beyond the
jurisdiction of this court to review. See DeLaRosa v.
Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The majority
recognizes as much. Maj. Op. 4. Yet the majority recasts
the Board’s factual finding regarding the necessity of a
medical examination as an apparent misinterpretation of
the legal standard undergirding subparagraph B of 38
U.S.C. § 5103A(d)(2). In doing so, the majority suggests
that the Board misapplied our holdings in Waters v.
Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), and Colantonio
v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), when the
Board rejected Mr. Dellosa’s lay evidence as not compe-
tent to indicate that his disability was associated with his
active military service. See § 5103A(d)(2)(B).
I do not agree that the Board categorically rejected
Mr. Dellosa’s lay evidence or held him to “a more onerous
standard of proof than the statute provides.” Waters, 601
F.3d at 1277. Rather, “[t]he decision here on appeal
indicates that the Board did consider the lay evidence.”
Dellosa v. Shinseki, No. 11-1891, 2012 U.S. App. Vet.
Claims LEXIS 994, at *2 (Vet. App. May 15, 2012). The
Board acknowledged Mr. Dellosa’s lay evidence support-
ing his assertion that he suffered from his disability in-
service, but found the record devoid of any complaints,
diagnoses, or treatment of bipolar disorder. 1 The record,
1 The Board was correct in its observation that lay-
persons generally are not competent to provide evidence
of a diagnosis or etiology. See Jandreau v. Nicholson, 492
F.3d 1372, 1377 (Fed. Cir. 2007).
DELLOSA v. SHINSEKI 3
therefore, was silent regarding a nexus between Mr.
Dellosa’s disability and his military service.
The Board did not suggest that lay statements can
never be sufficient to satisfy the nexus requirement of
§ 5103A(d)(2)(B), or that competent medical evidence is
required for that subparagraph. Cf. Waters, 601 F.3d at
1277; Colantonio, 606 F.3d 1378 (noting the impropriety
of a decision holding that competent medical evidence is
necessarily required to establish a nexus between service
and a later disability). Rather, the Board’s citation to
Waters indicates that it rejected Mr. Dellosa’s evidence as
a conclusory lay statement insufficient to trigger the
Department of Veterans Affairs’ duty to provide a medical
examination. At bottom, the Board’s conclusion that the
evidence did not warrant a medical examination was a
factual finding beyond our jurisdiction. DeLaRosa, 515
F.3d at 1322. Even its conclusion that the lay evidence
was neither competent nor sufficient is a fact issue that
we cannot review. Jandreau, 492 F.3d at 1377; see also
Waters, 601 F.3d at 1278 (“The Department must consider
lay evidence, but may give it whatever weight it concludes
the evidence is entitled to.”).
The majority relies heavily on the fact that the Board
discussed the evidence supporting an examination before
considering the evidence regarding service connection,
implying that the lay evidence was considered for the
latter analysis, but not the former. The Board’s discus-
sion of the lay evidence, however, pertained to both anal-
yses. Joint App’x 51 (“[A]s discussed below, the evidence
of record does not warrant [an examination].”). In fact,
the Board acknowledged that “[l]ay testimony is compe-
tent . . . to establish the presence of observable sympto-
matology and ‘may provide sufficient support for a claim
of service connection.’” Id. at 55. Nonetheless, the Board
concluded that Mr. Dellosa’s contentions were outweighed
by the medical evidence of record that did not show a
relationship between Mr. Dellosa’s disability and service.
4 DELLOSA v. SHINSEKI
This type of weighing of the evidence is beyond our juris-
dictional reach.
As was true in Waters, the Board’s reference to “com-
petent” evidence relating to the nexus requirement was
unfortunate and ill-advised. 601 F.3d at 1277. The Board
should have said that the record before it did not indicate
that Mr. Dellosa’s current disabilities had a causal con-
nection or were associated with his active military service.
Id. The majority reverses on this minor technicality
notwithstanding that the Board applied the proper legal
standard and reached a factual determination that an
examination was not required. I do not believe that our
jurisdiction changes on such nuances. It is for this reason
that I depart from the majority and conclude that we lack
jurisdiction to decide this case.
At this point, I find it important to reiterate our ob-
servation from Waters that a conclusory generalized
statement regarding the nexus between a disability and
service is not enough to entitle a veteran to a medical
examination under § 5103A(d)(2)(B). Id. at 1278. “Since
all veterans could make such a statement, this theory
would eliminate the carefully drafted statutory standards
governing the provision of medical examinations and
require the Secretary to provide such examinations as a
matter of course in virtually every veteran’s disability
case.” Id. The Board found that Mr. Dellosa was not
entitled to an examination because his conclusory state-
ments regarding nexus were outweighed by other record
evidence. We are limited by our standard of review to
upset this finding. From the majority’s willingness to do
so by discerning a legal error where none exists, I respect-
fully dissent.