Roberson v. SHINSEKI

United States Court of Appeals
for the Federal Circuit
__________________________

CATHERINE ROBERSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________

2009-7093
__________________________

Appeal from the United States Court of Appeals for
Veterans Claims in 05-3243, Judge Alan G. Lance, Sr.
___________________________

Decided: June 7, 2010
___________________________

SANDRA E. BOOTH, Sandra E. Booth Attorney at Law,
of Columbus, Ohio, argued for claimant-appellant.

ALLISON KIDD-MILLER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent-appellee. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of
counsel on the brief were MICHAEL J. TIMINSKI, Deputy
Assistant General Counsel, and AMANDA R. BLACKMON,
ROBERSON v. DVA 2

Attorney, Office of the General Counsel, United States
Department of Veterans Affairs, of Washington, DC.
__________________________

Before BRYSON and MOORE, Circuit Judges, and FOLSOM,
Chief District Judge. 1
FOLSOM, Chief District Judge.

Appellant Catherine Roberson appeals the decision of
the Court of Appeals for Veterans Claims (Veterans
Court) affirming the Board of Veterans’ Appeals (Board)
decision denying Mrs. Roberson’s claim for death and
indemnity compensation (DIC) pursuant to former 38
U.S.C § 1151 for her husband’s death from non-service-
connected cancer. Because the Veterans Court properly
interpreted former 38 U.S.C. § 1151, we affirm.
BACKGROUND
Mrs. Roberson’s late husband, Isaac Roberson, served
in the United States Army from 1956 until he was
granted an honorable discharge in 1959. His medical
history includes a heart attack in 1974 and a non-
disabling cerebrovascular accident (CVA) or stroke in
1974 with a second CVA in 1990, which left the veteran
with some paralysis on his left side. There is no claim
that the heart attack or CVAs are service-connected.
Mr. Roberson regularly received treatment at VA
medical facilities, including the Columbus, Ohio VA
Outpatient Center and VA hospitals in Chillicothe and
Cincinnati, Ohio. He also occasionally was treated by
emergency room personnel at Riverside Methodist Hospi-
1
The Honorable David Folsom, United States Dis-
trict Court for the Eastern District of Texas, sitting by
designation.
3 ROBERSON v. DVA

tal (Riverside), a private facility in Columbus, Ohio.
Beginning in March 1993, Mr. Roberson was treated
exclusively by VA providers over the next two years. In
January 1995, he visited the Columbus, Ohio VA Outpa-
tient Center for modification of an orthotic and for stroke
follow-ups. His last VA hospital admission prior to his
death was in March 1995, when he was seen for a period
of respite care. At that time, Mr. Roberson had no specific
complaints other than a “head cold,” and he was treated
for mild pharyngitis. In May 1995, Mr. Roberson was
seen by a VA physician who noted his increasing symp-
toms (greater use of assistive devices, cane, grab bars, lift
chair), but attributed those symptoms to his history of
strokes.
In June 1995 Mrs. Roberson took her husband to Riv-
erside after he began experiencing slurred speech and
intermittent vision impairment. The computed tomogra-
phy (CT) scan performed at Riverside yielded negative
results. Later that month, Mr. Roberson visited Riverside
for a follow-up examination at which time the treatment
provider found him to be agitated, anxious, and frustrated
because he was unable to do things or make himself
understood. The treatment provider diagnosed Mr.
Roberson with “adjustment disorder.”
Mr. Roberson was again admitted to Riverside
through its emergency room in August 1995. During this
visit, however, a CT scan showed a significant obstructed
hydrocephalus—a condition characterized by abnormal
accumulation of fluid in the cranial vault—with a mass in
the right cerebellum. The subsequent magnetic resonance
imaging (MRI) showed a five centimeter mass and metas-
tasis in the right cerebellum. Mr. Roberson also had
extensive involvement in the liver and subcutaneous
masses with possible metastasis to bone. The physician’s
clinical impression was to “rule out prostatic carcinoma
ROBERSON v. DVA 4

with cerebral metastasis.” A consultation report prepared
at the time by Riverside physician Dr. James D. Pritchard
indicated that the origin of Mr. Roberson’s cancer was
“most likely” in the lung although other sources could not
be ruled out. Mr. Roberson died two months later in
October 1995 from cardiac arrhythmia caused by pneu-
monia brought on by the metastatic cancer.
At the time of his death, Mr. Roberson had an appeal
pending for compensable ratings for arthritis of his left
foot and right great toe. In February 1996, appellant Mrs.
Roberson filed a claim for accrued benefits based on her
husband’s increased ratings that were pending. Three
months later, she filed a claim for DIC benefits based on
the contention that her husband’s death resulted from his
treatment at the VA medical facility. Specifically, Mrs.
Roberson claimed that the VA physicians failed to diag-
nose her late husband’s cancer and that this failure
hastened his death. In June 1996, the VA Regional Office
denied Mrs. Roberson’s DIC claim because the evidence
failed to show that the cause of Mr. Roberson’s death was
related to his military service or to a service-connected
condition. Mrs. Roberson persisted, but in September
1996 the Regional Office denied her claim based on for-
mer 38 U.S.C. § 1151.
In November 1998, the Board similarly denied DIC
benefits based on a lack of service connection for the cause
of Mr. Roberson’s death and under former § 1151. The
Board, however, granted entitlement to accrued benefits
and assigned 10% disability ratings for Mr. Roberson’s
left foot and right toe disabilities. The Veterans Court
nevertheless vacated the Board’s November 1998 decision
and remanded the matter for further development, includ-
ing compliance with the Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475, 114 Stat. 2096. See
5 ROBERSON v. DVA

Roberson v. Principi, No. 99-352, 2001 WL 290189, at *3
(Vet. App. Mar. 22, 2001).
Upon the Board’s request for additional development,
two VA physicians from the Bronx, New York VA medical
center provided an opinion in July 2003 regarding Mr.
Roberson’s cancer and death. In that opinion, the physi-
cians stated that although the primary site of the cancer
was undetermined, the “possible primary sites for this
cancer include head and neck tumors, prostate, and
bowel.” Onset of the cancer occurred four to six months
before the August 1995 diagnosis, concluded the VA
physicians. The VA physicians also noted that “neither of
the brain metastases was detectable on [a] CT scan of the
head in June, 1995” and that “the second of the two brain
metastases was undetectable on CT scan of the head on
8/14/95, two days before it was discovered on 8/16/95.”
According to the VA physicians, “the multiple scans and
x-rays that were performed in 1995 prove that the disor-
der was first manifested in August, 1995” and “was not
present on testing prior to July, 1995.”
The Board also asked the VA physicians to answer
specific questions, including:
Did VA fail, during a period of VA treatment, to
diagnose the disorder which caused the veteran’s
death, when a physician exercising the degree of
skill and care ordinarily required of the medical
profession reasonably should have diagnosed the
condition and rendered treatment?
The VA physicians were additionally asked to deter-
mine whether the veteran suffered any additional disabil-
ity or death as a result of the VA’s failure to diagnose the
veteran’s cancer. In response, the VA physicians stated:
ROBERSON v. DVA 6

There are no symptoms recorded during the epi-
sodes of VA treatment suggestive of a medical
condition that warranted further investigation. In
the absence of a history to suggest a disorder
other than the multiple strokes, and in the ab-
sence of a change in physical findings to suggest a
new or worsening process, further investigative
studies were not clinically indicated.
The VA physicians added:
It is impossible to say if [the veteran] could have
been cured if the disease had been detected ear-
lier. Death from extensive small cell carcinoma
with brain involvement usually, but not always,
results in death within 10 months. Any individ-
ual patient, however, may not follow this statistic.
Small cell carcinomas have a median survival
with treatment of 10 months.
The Board on remand also considered a January 1998
letter Dr. Pritchard wrote on behalf of Mrs. Roberson in
which he opined that as of August 1995, Mr. Roberson
“already had brain involvement from his tumor, and in
addition, the C[]T scan showed extensive involvement in
the liver, lymph nodes, and lung. Therefore his disease
was advanced at the time of diagnosis.” Dr. Pritchard’s
letter also stated that the small cell carcinoma had “ad-
vanced very quickly and had not been present for a long
period of time” with an estimated “onset of perhaps four
to eight months prior to the diagnosis.”
After reviewing the opinions of the VA physicians, Dr.
Pritchard’s letter, Mrs. Roberson’s lay opinions, and the
rest of the evidentiary record, the Board found “no evi-
dence of record suggesting that VA treatment, specifically
the lack of a diagnosis of [Mr. Roberson’s] small cell
carcinoma, had the effect of hastening [Mr. Roberson’s]
7 ROBERSON v. DVA

death.” See Bd. Vet. App. 0525865, 2005 WL 3916807
(2005).
Mrs. Roberson appealed the Board’s decision to the
Veterans Court asserting that VA treatment, that is, the
failure to diagnose her husband’s cancer, had the effect of
hastening his death. The Veterans Court affirmed and
held that the Board’s decision that Mrs. Roberson had not
proven her claim to entitlement to DIC benefits under
former 38 U.S.C. § 1151 by a preponderance of the evi-
dence was not clearly erroneous. Roberson v. Shinseki, 22
Vet. App. 358, 366 (2009). In so finding, the Veterans
Court concluded that Mrs. Roberson “has not shown that
VA should have diagnosed the veteran’s cancer prior to
his actual diagnosis.” Id.
DISCUSSION
This Court has jurisdiction pursuant to 38 U.S.C. §
7292(c). We review statutory interpretation by the Veter-
ans Court de novo. Glover v. West, 185 F.3d 1328, 1331
(Fed. Cir. 1999). Absent a constitutional issue, we may
not review challenges to factual determinations or chal-
lenges to the application of a law or regulation to facts.
38 U.S.C. § 7292(d)(2) (2006).
The main issue is whether the Veterans Court cor-
rectly interpreted the previous version of 38 U.S.C. § 1151
by finding that a claim based on an alleged failure to
diagnose requires the claimant to show that VA should
have diagnosed the condition in question.
The current version of 38 U.S.C. § 1151 provides bene-
fits for a death or disability resulting from VA medical
treatment in the same manner as for a service-connected
death or disability. This current version of the statute
requires the putative claimant to demonstrate “careless-
ness, negligence, lack of proper skill, error in judgment, or
ROBERSON v. DVA 8

similar instance of fault on the part of the Department in
furnishing the hospital care, medical or surgical treat-
ment, or examination.” See 38 U.S.C. § 1151(a)(1)(A). 2
This current version originated as a response to the
United States Supreme Court’s decision in Brown v.
Gardner, 513 U.S. 115 (1994). In Gardner, the claimant,
Mr. Gardner, received surgical treatment at a VA medical
center for a herniated disc unrelated to his prior military
service. He then experienced pain and weakness in his
left calf, ankle, and foot, which he alleged was the result
of the surgery and claimed disability benefits under the
previous version of § 1151. The previous version of 38
U.S.C. § 1151 provided:
Where any veteran shall have suffered an injury,
or an aggravation of an injury, as the result of
hospitalization, medical or surgical treatment . . .
or as a result of having submitted to an examina-
tion . . . , and not the result of such veteran’s own
willful misconduct, and such injury or aggravation
results in additional disability to or the death of
such veteran, disability or death compensation . . .
shall be awarded in the same manner as if such
disability, aggravation, or death were service-
connected.
Pub. L. No. 85-857, 72 Stat. 1105, 1121 (1958) (renum-
bered § 1151 at Pub. L. No. 102-83, 105 Stat. 378,406
(1991)).

2
Congress amended 38 U.S.C. § 1151 in 1996. See
Departments of Veterans Affairs and Housing and Urban
Development, and Independent Agencies Appropriations
Act of 1997, Pub. L. No. 104-204, 110 Stat. 2874, 2927
(1996). When this opinion refers to “former § 1151” or the
“previous version of 38 U.S.C. § 1151,” it refers to the
statute prior to its amendment in 1996.
9 ROBERSON v. DVA

The VA and the Board denied Mr. Gardner’s claim.
Both the VA and the Board relied on 38 C.F.R. §
3.358(c)(3) (1993), which permitted recovery under former
§ 1151 only if the injury “proximately resulted [from]
carelessness, negligence, lack of proper skill, error in
judgment, or similar instances of indicated fault” on the
part of the VA, or from the occurrence during treatment
or rehabilitation of an “accident,” defined as an “unfore-
seen, untoward” event. Gardner, 513 U.S. at 117. The
Veterans Court reversed the Board’s decision and the
Federal Circuit affirmed the Veterans Court’s judgment.
Gardner v. Derwinski, 1 Vet. App. 584 (1991), aff’d sub
nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993). In
affirming, the Supreme Court stated:
This language [of former § 1151] is naturally read
simply to impose the requirement of a causal con-
nection between the “injury” or “aggravation of an
injury” and “hospitalization, medical or surgical
treatment, or the pursuit of a course of vocational
rehabilitation.” Assuming that the connection is
limited to proximate causation so as to narrow the
class of compensable cases, that narrowing occurs
by eliminating remote consequences, not by re-
quiring a demonstration of fault.
Gardner, 513 U.S. at 119. Thus, according to the Gardner
Court, “the text and reasonable inferences from it give a
clear answer” that a claimant need not prove fault in
order to recover under former § 1151. Id. at 120.
The claimant in Gardner sought relief for aggravation
connected to VA treatment. In subsequent cases, how-
ever, the VA and the Board repeatedly faced the situation
of § 1151 claims for a VA failure to treat or diagnose. As
a result, the Board requested a legal opinion from the VA
General Counsel about whether former § 1151 authorizes
ROBERSON v. DVA 10

compensation for claims based on a VA omission or failure
to diagnose, and if so, what essential elements of such a
claim must be established in order for a claimant to
prevail on such a claim. In February 2001, the VA Gen-
eral Counsel issued its opinion (GC Opinion). According
to the GC Opinion, neither the language of former § 1151
nor its legislative history suggests an intent to distinguish
between acts of commission, i.e. treatment or surgery, and
acts of omission such as a failure to diagnose. With
respect to the elements of a claim based on a failure to
diagnose or treat, the GC Opinion stated that the entitle-
ment to benefits based on such a claim would ordinarily
require a determination that: (1) the VA failed to diagnose
and/or treat a preexisting disease or injury; (2) a physi-
cian exercising the degree of skill and care ordinarily
required of the medical profession reasonably should have
diagnosed the condition and rendered treatment; and (3)
the veteran suffered disability or death which probably
would have been avoided if proper diagnosis and treat-
ment had been rendered.
The GC Opinion recognized that the second element
ostensibly conflicts with the Gardner decision; however,
the GC Opinion also recognized that the Gardner decision
plainly required a showing of a causal connection between
an injury or aggravation of an injury and VA hospitaliza-
tion or treatment. Under the common law pertaining to
claims based on a failure to diagnose, the GC Opinion
reasoned, a showing that the failure was due to the lack of
ordinary care or skill is a necessary element of establish-
ing the causal relationship between treatment and injury.
The VA General Counsel added that the Gardner Court
removed the necessity of showing fault in addition to
showing causation but did not address whether showing a
failure to exercise ordinary care constituted an element of
entitlement.
11 ROBERSON v. DVA

Mrs. Roberson primarily argues that the Veterans
Court and the VA General Counsel erroneously reinter-
preted the Gardner ruling and reinserted a negligence or
fault standard into 38 U.S.C § 1151 (1996) for one class of
cases: acts of omission. According to Mrs. Roberson,
Gardner is binding judicial precedent and the Veterans
Court cannot revisit the previous version of 38 U.S.C. §
1151 and reinsert a fault standard into a statute, the
language of which the Supreme Court found to be clear.
With respect to the GC Opinion, Mrs. Roberson contends
that it confuses the element of causation with the princi-
ple of liability thus rendering it legally incorrect. Mrs.
Roberson adds that whether an injury was the result of
VA medical care is a wholly separate inquiry from
whether the VA providers were negligent for former §
1151 purposes.
In response, the government argues that the Veterans
Court permissibly interpreted the previous version of 38
U.S.C. § 1151 as applied to claims that the VA failed to
diagnose a disease or condition. The government submits
that the Gardner decision did not address the question
presented in this case, to wit, what former § 1151 requires
a claimant to demonstrate when he or she alleges that
VA’s failure to diagnose a disease caused an additional
disability or death. Since the Gardner Court left open the
question of whether or how an omission, such as a failure
to diagnose, causes a particular claimant additional
disability, the Veterans Court’s interpretation rests upon
a permissible construction of the statute, the government
adds. In the alternative, the government argues that the
Board’s factual finding that no evidence of record sug-
gested that the VA’s lack of diagnosis had the effect of
hastening Mr. Roberson’s death supports the denial of
Mrs. Roberson’s claim and that this Court does not have
the jurisdiction to review such a finding.
ROBERSON v. DVA 12

Mrs. Roberson claims that VA’s failure to diagnose
and treat her husband’s cancer resulted in additional
disability and hastened his death. As the Gardner Court
stated, however, demonstrating a “causal connection
between the ‘injury’ or ‘aggravation of an injury’ and
‘hospitalization, medical or surgical treatment, or the
pursuit of a course of vocational rehabilitation” is a fun-
damental prerequisite to recovery under the previous
version of 38 U.S.C. § 1151. Gardner, 513 U.S. at 119.
Establishing this causal connection, also called “proxi-
mate causation” by the Court, separates the compensable
claims from the non-compensable claims. Id. Neither
party disputes this proximate causation requirement;
however, Mrs. Roberson’s position—that a claimant can
demonstrate causation without including a fault standard
or proving a breach of duty—overlooks this proximate
cause requirement. Put another way, Mrs. Roberson’s
position fails to provide a sufficiently discernable stan-
dard for distinguishing the “failure to diagnose” claims
that are compensable from those that are not. A fault
standard is needed in failure-to-diagnose claims under
former § 1151 because there would otherwise be no means
for eliminating remote consequences or excluding cover-
age based on an injury’s or a disease’s natural progres-
sion. Id.; see also id. at n.3.
As the GC Opinion recognized, a fault requirement
appears at first blush to be inconsistent with Gardner.
However, Mr. Gardner sought recovery for aggravation of
injury resulting from the VA’s surgical treatment—an act
of commission—while Mrs. Roberson seeks to recover for
VA’s failure to diagnose—an act of omission. Contrary to
Mrs. Roberson’s argument, this distinction is neither
insignificant nor illusory. In a commission case, a claim-
ant may meet his or her burden as to causation but not as
to negligence. For example, Mr. Gardner may be able to
13 ROBERSON v. DVA

establish that VA surgical treatment caused the weakness
in his left leg, ankle, and foot but not be able to establish
that the VA negligently performed the surgery. The
Gardner Court held that such circumstances did not
preclude recovery under former § 1151. In an omission
case, by contrast, the only way to show causation is to
demonstrate that the VA failed to diagnose when it
should have. Without a showing that the VA should have
diagnosed a condition, the VA would be subject to insur-
ing for every possible condition that a veteran has, even if
unrelated to service or VA treatment. Similarly, without
a showing that the VA should have diagnosed the condi-
tion, the VA would be subject to insuring for an injury’s
natural progression.
Mrs. Roberson would have the test focus on determin-
ing whether an “injury” or “aggravation of an injury” is a
"remote consequence” under Gardner based on the scope
of the VA’s medical undertaking. For example, if a vet-
eran has a tooth filled, the VA’s failure to diagnose cancer
of the foot would be unrecoverable under former § 1151 as
a “remote consequence” of the dental treatment. But the
VA’s failure to diagnose cancer of the throat would be a
“closer call” under Mrs. Roberson’s test. In this case, Mrs.
Roberson contends that VA’s evaluation of her husband’s
deteriorating condition and subsequent diagnosis as
“adjustment disorder” removes his injury or aggravation
from the category of remote consequences. This amor-
phous “scope” or “purpose” of the VA’s medical undertak-
ing standard provides little guidance and would be
unworkable. VA’s treating of Mr. Roberson for stroke-
related symptoms does not establish ipso facto that it
should have diagnosed his brain metastasis. Further, any
kind of mere temporal or physiological relation alone does
not suffice. Such a claim cannot be recoverable under
former § 1151 unless a claimant proves that VA should
ROBERSON v. DVA 14

have diagnosed the condition. Indeed, Mrs. Roberson’s
“scope of undertaking” rule implicates a fault standard or
breach of duty by basing a claimant’s recovery on what
the VA should have done during examination, diagnosis,
and treatment. It cannot be the rule that because the VA
was Mr. Roberson’s primary caregiver, any omissions
should be charged against it just as any commissions
might be. Such a rule would wholly ignore the element of
causation. The mere fact that VA provided care, even
exclusively, cannot by itself mean that VA’s failure to
diagnose caused aggravation of injury or hastened the
veteran’s death. At most, exclusive care by the VA may
be a factor in determining whether it breached any duty
to a veteran by failing to diagnose a disease.
Contrary to Mrs. Roberson’s argument, the Board did
not err as a matter of law by requiring her to prove that
the VA should have diagnosed her late husband’s cancer.
Where a claimant seeks to recover under the previous
version of 38 U.S.C § 1151 for VA’s failure to diagnose, it
is impossible to delineate proximate cause without speak-
ing in terms of duty. The Board applied the proper legal
standard and determined that no evidence of record
suggested that VA treatment had the effect of hastening
Mr. Roberson’s death. Specifically, the Board found that
“[n]one of the disorders leading to death were hastened on
account of any incident of VA treatment.” The Board
concluded that the preponderance of the evidence was
against Mrs. Roberson’s claim for DIC benefits under
former § 1151.
Also, Mrs. Roberson does not contend that the Board
erred by discounting her lay opinion as the only direct
evidence supporting her claim. This Court lacks jurisdic-
tion to review the Board’s factual finding that Mrs.
Roberson failed to meet her burden as to causation. See
15 ROBERSON v. DVA

38 U.S.C. § 7292 (absent a constitutional issue, this court
“may not review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case”). Mrs. Roberson concedes
that unless the Board applied an incorrect standard, its
factual determination is beyond our review.
The Veterans Court applied the law to the facts of
Mrs. Roberson’s case and affirmed, stating that “the
appellant has not shown that VA should have diagnosed
the veteran’s cancer prior to his actual diagnosis.” The
Veterans Court reviewed the Board’s determination that
the preponderance of the evidence was against her claim
of entitlement under the correct legal standard by requir-
ing Mrs. Roberson to prove that the VA should have
diagnosed Mr. Roberson’s cancer. Therefore, the Veterans
Court did not misinterpret the previous version of 38
U.S.C. § 1151 in affirming the Board’s decision. 3
In sum, to recover under the previous version of 38
U.S.C. § 1151 for an alleged failure to diagnose or similar
act of omission, a claimant must establish that the VA
should have diagnosed or acted but failed to do so. This is
not an element in addition to causation. Instead, it serves
as the means of establishing the causal connection, or

3
In its opinion, the Veterans Court defined “injury”
or “aggravation of an injury” to be the “failure to diagnose
the condition.” Under Gardner, however, the “injury” for
purposes of 38 U.S.C. § 1151 (1996) is the undiagnosed or
untreated condition. Gardner, 513 U.S. at 118-119.
Nevertheless, the Veterans Court’s reasoning—that a
claimant cannot demonstrate an injury unless it is shown
that VA should have diagnosed the condition—accords
with the proper legal standard and the requirement of
showing causation in claims under former § 1151. There-
fore, the Veterans Court’s definitions of “injury” or “ag-
gravation of an injury” does not affect our present
conclusion.
ROBERSON v. DVA 16

proximate cause, between the injury or the aggravation of
the injury and the VA treatment.
CONCLUSION
Because the Veterans Court correctly interpreted the
elements required for a claimant’s recovery under the
previous version of 38 U.S.C. § 1151, the decision of the
Veterans Court is
AFFIRMED.

COSTS
No Costs.