United States Court of Appeals for the Federal Circuit
2007-7049
JOHN W. CONLEY,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.
Steven M. Mager, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. On the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General;
Jeanne E. Davidson, Director; Franklin E. White, Jr., Assistant Director; and Gregg M.
Schwind, Trial Attorney. Of counsel on the brief were Michael J. Timinski, Deputy
Assistant General Counsel; and Amanda R. Blackmon, Attorney, United States
Department of Veterans Affairs, of Washington, DC. Of counsel was Michael S.
Dufault, Trial Attorney, Commercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr.
United States Court of Appeals for the Federal Circuit
2007-7049
JOHN W. CONLEY,
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 04-0341, Chief
Judge William P. Greene, Jr.
____________________________
DECIDED: September 29, 2008
____________________________
Before MICHEL, Chief Judge, MOORE, Circuit Judge, and O'Grady, * District Judge.
MICHEL, Chief Judge.
John W. Conley appeals from a decision of the United States Court of Appeals
for Veterans Claims ("Veterans Court") affirming the decision of the Board of Veterans'
Appeals ("Board") denying Conley an effective date earlier than April 9, 1992, for his
service-connected major depressive disorder. See Conley v. Nicholson, No. 04-0341
(Vet. App. Aug. 30, 2006). Because we conclude that the Veterans Court correctly
interpreted 38 U.S.C. § 105(a), we affirm.
*
Honorable Liam O'Grady, District Judge, United States District Court for
the Eastern District of Virginia, sitting by designation.
BACKGROUND
John W. Conley is a veteran of the United States Army, having served from June
1970 to September 1971. In June 1971, while on leave from his post in Germany,
Conley was admitted to a Department of Veterans Affairs ("VA") hospital in Omaha,
Nebraska, after a suicide attempt. Medical records from his hospitalization indicate
diagnoses of "depressive neurosis" and "premorbid personality." He was discharged
from the Army after a July 1971 psychiatric examination recommended that he be
separated from service due to inadaptability resulting from a "severe personality
disorder." In October 1971, Conley sought service connection for "emotional instability
reaction." However, when a November 1971 psychiatric examination diagnosed him
with "[p]ersonality disorder, passive-aggressive personality," the VA Regional Office
("RO") denied his application for service connection on the grounds that a personality
disorder was not a compensable disability under 38 C.F.R. § 3.303(c). Conley chose
not to appeal that decision.
Conley attempted to reopen his claim in April 1992 by requesting VA
compensation for, inter alia, a nervous condition. A psychiatric examination in May
1992 diagnosed him with "[r]ecurrent depressive disorder, rather severe" and
"[b]orderline personality disorder." The RO determined in September 1992 that
Conley's claim for benefits related to a "nervous condition" was the same claim that had
been denied in 1972 and that he had not presented new and material evidence to
reopen the claim. Conley disagreed and promptly appealed to the Board.
In February 1995, the Board remanded Conley's claim to the RO to obtain
additional service medical records related to his June 1971 hospitalization. After the
records were reviewed, a December 1996 rating decision found no new and material
evidence. After further development, the Board denied reopening of the claim in May
1997, determining that "no new evidence which [was] not cumulative or duplicative of
evidence previously received and considered and which [was] sufficiently relevant and
probative" had been submitted in order to reopen the claim. Conley appealed this
decision to the Veterans Court. 1
The court remanded the matter to the Board in December 1998 with instructions
to determine if Conley's new evidence (including outpatient medical records dated from
March to May 1992) was material under the proper standards. See 38 C.F.R. § 3.156;
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In June 1999, the Board reopened
Conley's claim and, after review under the correct standard, remanded the matter to the
RO for readjudication. In January 2000, the RO awarded Conley service connection for
"major depressive disorder with psychotic features" and assigned a 100% disability
rating, effective April 9, 1992. Conley disagreed with the effective date and filed a
Notice of Disagreement in January 2001, arguing that the 1972 RO decision that had
denied his claim contained clear and unmistakable error ("CUE") and that he was
entitled to an effective date of September 24, 1971. A May 2001 rating decision found
that "no revision [was] warranted in the decision to deny service connection for a
personality disorder in 1972" because the "decision was properly based on the available
evidence of record at the time."
A Statement of the Case issued by the RO in December 2002 found no CUE in
the 1972 RO decision and continued the effective date of April 9, 1992. Conley
1
The United States Court of Veterans Appeals was renamed by Congress
the United States Court of Appeals for Veterans Claims, effective March 1, 1999.
2007-7049 3
appealed to the Board, and in January 2004, the Board also denied an effective date
earlier than April 9, 1992 after concluding that CUE had not been committed in the
January 1972 RO decision. The Board reasoned that the 1972 decision was based on
medical records indicating only a personality disorder, a condition for which
compensation may not be granted under applicable law. Conley appealed to the
Veterans Court, and in August the Veterans Court affirmed the Board's January 2004
decision. Conley then timely appealed to this court.
DISCUSSION
This court may review decisions of the Veterans Court with respect to the
"validity of any statute or regulation or any interpretation thereof" and may also "interpret
constitutional and statutory provisions, to the extent presented and necessary to a
decision." 38 U.S.C. § 7292(c). We review without deference decisions of law by the
Veterans Court. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). "However,
absent a constitutional issue, we are without jurisdiction to review a factual
determination or an application of law to the particular facts in an appeal from the Court
of Appeals for Veterans Claims." Id. In cases where the material facts are not in
dispute and the adoption of a particular legal standard would dictate the outcome of a
veteran's claim, we treat the application of law to undisputed fact as a question of law.
Groves v. Peake, 524 F.3d 1306, 1310 (Fed. Cir. May 1, 2008).
Conley argues that the Veterans Court misinterpreted the presumption of service
connection under 38 U.S.C. § 105(a), which provides that "[a]n injury or disease
incurred during active military . . . service will be deemed to have been incurred in line
of duty and not the result of the veteran's own misconduct" when the veteran was in
2007-7049 4
active service, unless the injury was a result of the person's own willful misconduct or
abuse of alcohol or drugs. Conley argues that the VA erred in refusing to afford him the
benefit of the presumption of service connection related to a psychiatric disability, and
that but for the Board's failure to apply the presumption provided by the statute, the VA
would have been required to provide compensation. The sole issue presented in this
appeal is whether the Veterans Court misinterpreted § 105(a).
In Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004), we clarified that a veteran
seeking compensation must show more than a service-connected injury. Shedden
involved a Marine Corps veteran who, after leaving the service, made a claim for
service connection for post-traumatic stress disorder ("PTSD") that was subsequently
denied by the RO. Id. at 1165. We held that § 105(a) affords a presumption of service
connection, namely that a disability incurred or aggravated during active duty is
presumed to be service-connected, unless the injury was a result of the veteran's own
willful misconduct or the abuse of alcohol or drugs. Shedden, 381 F.3d at 1166 (citing
38 U.S.C. § 105(a)). However, we further explained that the fact that a veteran suffered
or aggravated a service-connected disease is not enough to award compensation for
future disabilities. In order to establish a right to compensation for an alleged current
disability, a veteran must show: "(1) the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a causal relationship between
the present disability and the disease or injury incurred or aggravated during service."
Id. at 1167. Thus, even though § 105(a) indeed establishes a presumption of service
connection for a disabling disease or injury incurred or aggravated during service,
2007-7049 5
Conley was also required to show he had a disability present in 1972 that is causally
related to the in-service disease or injury. See Shedden, 381 F.3d at 1167.
Here, to the extent the Veterans Court interpreted § 105(a), it did so by
accepting, as it must, our language interpreting § 105(a) in Shedden, in which we
explained that "the veteran seeking compensation must still show the existence of a
present disability and that there is a causal relationship between the present disability
and the injury, disease, or aggravation of a preexisting injury or disease incurred during
active duty." See Shedden, 381 F.3d at 1167. In essence, the Veterans Court correctly
held that the presumption of § 105(a) only satisfies the second element set forth in
Shedden (in-service incurrence or aggravation of a disease or injury), and that Conley
still had to satisfy the other two elements of the Shedden test.
Under 38 C.F.R. § 3.303(c), which Conley does not challenge, personality
disorders are considered "[c]ongenital or developmental defects" for which service
connection cannot be granted because they "are not diseases or injuries within the
meaning of applicable legislation." Accordingly, the second element of Shedden (in-
service incurrence or aggravation of a disease or injury) did not affect the 1972 decision
to deny Conley's claim; instead, the claim was denied because the VA found that
Conley failed to satisfy the first prong (requirement of a present disability) since his
diagnosis in 1972, at the time of his claim, was for a personality disorder only. Thus,
even if the VA in fact failed to apply the presumption and that constituted error, it was
harmless error because Conley's claim for service connection did not meet the first of
the Shedden factors.
2007-7049 6
To the extent Conley argues that evidence in the record indicated the presence
of a compensable psychiatric disorder (in addition to the diagnosed personality disorder)
in 1972, the VA's determination to the contrary is not reviewable by this court because it
falls outside our jurisdiction. See 38 U.S.C. § 7292(d)(2) ("[The Federal Circuit] may not
review [] a challenge to a factual determination."). Thus, we cannot review the VA's
finding that Conley did not prove a compensable present disability at the time of his
1972 claim.
In sum, to the extent the Veterans Court's recitation of our discussion in Shedden
can be considered its own interpretation of § 105(a), and not merely an application of
our interpretation to the facts of this case, we agree with the Veterans Court's
interpretation. We also reaffirm that the factors laid out in Shedden remain the
controlling precedent in establishing service connection for a current disability.
CONCLUSION
For the foregoing reasons, we affirm the decision of the Veterans Court affirming
the Board's denial of Conley's claim for an effective date earlier than April 9, 1992.
COSTS
No costs.
2007-7049 7