United States Court of Appeals for the Federal Circuit
2007-7177
JAMES H. HOGAN,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Janet R. Carter, The Veterans Law Group, of La Jolla, California, argued for
claimant-appellant. With her on the brief was Mark R. Lippman.
Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Gregory G. Katsas, Acting Assistant Attorney Genera, Jeanne E.
Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel were
David J. Barrans, Deputy Assistant General Counsel, and Y. Ken Lee, Attorney, Office
of the General Counsel, United States Department of Veterans Affairs, of Washington,
DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge William A. Moorman
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2007-7177
JAMES H. HOGAN,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 04-1336, Judge
William A. Moorman.
______________________
DECIDED: October 9, 2008
_______________________
Before MAYER, LINN, and PROST, Circuit Judges.
MAYER, Circuit Judge.
James H. Hogan appeals a judgment of the United States Court of Appeals for
Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’
Appeals that denied his claim for service connection for generalized anxiety disorder.
Hogan v. Nicholson, No. 04-1336 (Ct. Vet. App. Jan. 30, 2007). We affirm.
I.
Hogan served on active duty in the military from August 1976 to July 1982, from
September 1982 to September 1986, and from May 1987 to June 1990. In August
1997, he filed a claim with a Veterans Affairs regional office (“RO”) seeking benefits for
“chronic stress/anxiety disorder.” In June 1999, the claim was denied.
In February 2000, the RO received an undated letter from Marta McKay, a
licensed professional counselor, who had seen Hogan for counseling. McKay stated:
Mr. Hogan presented a diagnostic picture of chronic anxiety. Although I
cannot prove or state definitively that [Hogan’s] anxiety started in the
1980’s or that it was military connected, it is likely that his anxiety disorder
has been long-standing for many years and just as likely that he suffered
from anxiety during his time in the military.
In July 2001, the board remanded Hogan’s claim to the RO for further
neuropsychiatric examinations. Subsequently, Edith Dalton, a Veterans Administration
psychiatric examiner, diagnosed Hogan with “generalized anxiety disorder.” Dalton
stated that while she believed that Hogan’s anxiety started during his “traumatic”
childhood, events occurring in the military had “exacerbated” his condition.
In December 2002, the board denied Hogan’s claim for service-connected
benefits for generalized anxiety disorder. Hogan then appealed to the Veterans Court.
The parties subsequently submitted a joint motion stating that the board had provided
inadequate support for its conclusion that Hogan’s anxiety disorder was not incurred in
service. Accordingly, the Veterans Court remanded the case to the board for further
consideration.
On remand, the board again denied Hogan’s claim. It acknowledged that Dalton,
the Veterans Administration psychiatric examiner, had stated that Hogan’s military
experience had “exacerbated” his anxiety disorder. The board found, however, that
since there had been no showing of a permanent increase in his generalized anxiety
disorder as a result of his military service, Dalton’s opinion was insufficient to establish
2007-7177 2
service connection. 1 The board noted, moreover, that in a 1986 medical examination
for separation from service and in a 1991 report of medical history, Hogan denied
having “depression, excessive worry, or other nervous trouble.”
On appeal, the Veterans Court affirmed. The court observed that Hogan’s April
1982, September 1986, and December 1991 separation examinations indicated that his
psychiatric condition was “normal.” Hogan, No. 04-1336, slip. op. at 5. Moreover, “the
earliest documentation of psychiatric symptoms and of a diagnosis of generalized
anxiety disorder was made several years after [Hogan’s] separation from service.” Id.
(citations and internal quotation marks omitted). In the court’s view, McKay’s
“equivocal” statements regarding the etiology of Hogan’s generalized anxiety disorder
had “no probative value” and could be considered “non-evidence” on the issue of
whether Hogan had established a nexus between his military service and his anxiety
disorder. Id. at 6.
II.
In reviewing a decision of the Veterans Court, this court is vested with authority
to “decide all relevant questions of law, including interpreting constitutional and statutory
provisions.” 38 U.S.C. § 7292(d)(1). We review statutory and regulatory interpretation
de novo. Buchanan v. Nicholson, 451 F.3d 1331, 1334 (Fed. Cir. 2006); Dambach v.
Gober, 223 F.3d 1376, 1380 (Fed. Cir. 2000); Prenzler v. Derwinski, 928 F.2d 392, 393
(Fed. Cir. 1991).
1
On appeal, Hogan does not challenge the board’s evaluation of Dalton’s
opinion. Instead, Hogan challenges only the evaluation of McKay’s opinion by the
board and the Veterans Court.
2007-7177 3
Hogan argues that the Veterans Court incorrectly interpreted 38 U.S.C.
§ 5107(a) 2 by adopting a rule that a medical opinion constitutes credible evidence only
when it is stated “in definitive terms” or “with absolute medical certainty.” Specifically,
he asserts that the court erroneously determined that the opinion of his therapist,
McKay, had no probative value because McKay was unable to state definitively when
his generalized anxiety disorder began.
We do not agree with Hogan’s interpretation of the Veterans Court’s decision.
Contrary to Hogan’s assertions, the court did not adopt—either implicitly or explicitly—a
rule that service connection can be established only when a medical professional can
state definitively or with certainty when a particular disorder or condition began.
Instead, the board fully assessed McKay’s opinion, but found it insufficient to establish
service condition given that: (1) McKay did not state that it was likely that Hogan’s
anxiety disorder began during or as a result of his military service, and (2) there was
substantial evidence in the record showing that Hogan’s anxiety disorder did not begin
until after he left the military.
This country has long recognized its obligation to provide for those who continue
to suffer from a disease or disability incurred while in active military service. See Boggs
v. Peake, 520 F.3d 1330, 1334 (Fed. Cir. 2008) (“In 1957, Congress consolidated into a
single act the subject matter of the extensive body of existing legislation authorizing and
governing the payment of compensation for service-connected disability or death to
persons who served in the military, naval, or air force of the United States.” (citations
and internal quotations omitted)). To establish a right to benefits, a veteran must show
2
In pertinent part, 38 U.S.C. § 5107(a) provides: “Except as otherwise provided
by law, a claimant has the responsibility to present and support a claim for benefits.”
2007-7177 4
that a current disability is “service connected,” i.e., that there is a medical nexus
between the disability and an “in-service precipitating disease, injury or event.”
Disabled Am. Veterans v. Sec’y of Veterans Affairs, 419 F.3d 1317, 1318 (Fed. Cir.
2005).
We agree with Hogan that the opinion of the Veterans Court contains some
troubling language: the court should not have referred to McKay’s letter as “non-
evidence.” Clearly, an opinion from a licensed counselor regarding the etiology of a
claimant’s psychological disorder must be considered as “evidence” of whether the
disorder was incurred in service. See 38 C.F.R. § 3.159(a)(1) (“Competent medical
evidence means evidence provided by a person who is qualified through education,
training, or experience to offer medical diagnoses, statements, or opinions.”). After
reviewing the record, however, we conclude that any error by the court was one of
semantics, not substance. See Shedden v. Principi, 381 F.3d 1163, 1168 (Fed. Cir.
2004). A mature reading of the court’s opinion makes clear that when the court stated
that McKay’s opinion was “non-evidence,” it meant that because the opinion did not
state that Hogan’s anxiety disorder was likely incurred during or as a result of his
military service—and there was substantial evidence showing that his disorder did not
begin until after he left the military—it was insufficient to establish service connection.
See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (The board has “authority
to discount the weight and probity of evidence in the light of its own inherent
characteristics and its relationship to other items of evidence.”); see also Jandreau v.
Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (“[T]he Board retains discretion to
make credibility determinations and otherwise weigh the evidence submitted . . . .”).
2007-7177 5
A determination regarding service connection requires consideration of “all
pertinent medical and lay evidence,” 38 C.F.R. § 3.303(a) (emphasis added), including
medical opinions that do not state definitively when a particular disorder or condition
began. See Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008) (“‘[D]eterminations
as to service connection will be based on review of the entire evidence of record.’”
(quoting 38 C.F.R. § 3.303(a)) (emphasis added)); Capellan v. Peake, 539 F.3d 1373,
1382 (Fed. Cir. 2008) (The board must make decisions regarding service connection
based upon consideration of “all evidence submitted by the claimant.” (emphasis
added)). Contrary to Hogan’s assertions, the Veterans Court did not adopt a rule that a
medical opinion lacks credibility if it does not state definitively or with “absolute medical
certainty” when a particular disorder or condition began. We therefore affirm.
AFFIRMED
COSTS
No costs.
2007-7177 6