Dye v. Mansfield

     United States Court of Appeals for the Federal Circuit

                                     2007-7093


                                  DERREL R. DYE,

                                                           Claimant-Appellant,


                                          v.


           GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,

                                                           Respondent-Appellee.

      Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.

       Gregg M. Schwind, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. On the brief were Peter D. Keisler, Acting Attorney General, Jeanne E.
Davidson, Director, and Deborah A. Bynum, Assistant Director. Of counsel on the brief
were Richard J. Hipolit, Assistant General Counsel, and Michelle D.D. Bernstein,
Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel
was Michael J. Timinski, Deputy Assistant General Counsel.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Bruce E. Kasold
 United States Court of Appeals for the Federal Circuit
                                      2007-7093

                                   DERREL R. DYE,


                                                      Claimant-Appellant,

                                           v.

           GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,

                                                      Respondent-Appellee.


                         ______________________________

                          DECIDED: October 16, 2007
                         ______________________________



Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit
Judge.

FRIEDMAN, Senior Circuit Judge.

      A veteran primarily contends that in adjudicating (and denying) his claim for

disability compensation, because his present disability was not service connected, the

Department of Veterans Affairs (“Department”) erred in failing to consider and apply the

presumption of service connection in 38 U.S.C. § 105(a). The Court of Appeals for

Veterans Claims (“Veterans Court”) held that, in the absence of any connection

between the veteran’s current medical problems and his in-service ones, the

presumption was inapplicable. We affirm.
                                             I

       The appellant, Derrel R. Dye, served on active duty in the armed forces from

1958 to 1975. During that time he made complaints of pain in the back, ankles, knees,

and feet. Following his discharge, in 1980 he was injured at work and developed back

pains. From 1997 to 2003, the Department treated him for multiple joint pain.

       In 1996 Dye filed with the Department’s regional office an application for disability

benefits for “[p]ain in lower back, both knees & ankles.” In its final decision, rendered

after extensive proceedings and following a prior appeal and remand by the Board of

Veterans Appeals (the “Board”), the regional office rejected Dye’s claims. As the Board

stated, the regional office “denied the veteran’s claim for service connection for multiple

joint pain, to include the low back, ankles, knees and great toes.”

       The Board denied “[s]ervice connection for disability characterized by multiple

joint pain to include the low back and bilateral ankles, knees and great toes.” The

Board explained:     “after a careful review of the record, the Board finds that the

preponderance of the evidence is against the claim of service connection for a disability

characterized by multiple joint pain to include the low back and bilateral ankles, knees

and great toes.”

       In a single judge order, the Veterans Court affirmed. The court rejected Dye’s

argument that because “he had multiple joint injuries and pain while he was in service[,]

. . . he was therefore entitled to disability compensation for his current multiple

disabilities pursuant to the presumptions of service connection under section 105(a) and

soundness under section 1111.”         This argument, the court stated, reflected “a

misunderstanding of both presumptions.” The court explained:




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             “[S]ection 105(a) creates a presumption of service
             connection, that is, that a disability first manifested or
             aggravated during active duty is deemed to be service
             connected, unless such injury or disease was a result of the
             person’s own willful misconduct or abuse of alcohol or
             drugs.” The in-service occurrence of an injury or disease,
             however, does not automatically lead to compensation for
             future disabilities. Despite Mr. Dye’s argument to the
             contrary, there still must be a nexus between an in-service
             injury or disease and the disability for which disability
             compensation is sought. In this instance, the Board found
             that Mr. Dye’s current multiple joint pain was not related to
             his in-service multiple joint injuries or pain. This finding is
             not disputed by Mr. Dye and, based on the record as a
             whole, is not clearly erroneous. Given this finding, section
             105(a) is not applicable and it was not error for the Board not
             to discuss it. [citations omitted]

      The court further ruled that

             the presumption of soundness is for application in instances
             where an injury or disease is first noticed while a veteran is
             in service. In such cases, the injury is presumed to have
             occurred in service unless clear and unmistakable evidence
             demonstrates that the injury or disease existed before
             acceptance and enrollment and was not aggravated by such
             service . . . The presumption of soundness is not for
             application to establish causal connection between his
             current injury or pain and his in-service pain; therefore, it
             was not error for the Board to not discuss it. [citations
             omitted]

                                           II

      At all levels at which this case was considered – the regional office, the Board

and the Veterans Court – the sole question, and the dispositive issue, was whether

Dye’s present medical problems were service connected, i.e., were they “incurred in or

aggravated by” his military service. Cf. 38 U.S.C. § 1112(a), (b). There was conflicting

evidence on this subject, and the regional office concluded that the necessary

relationship had not been established.




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       The Board began its opinion by stating “THE ISSUE” as “[e]ntitlement to service

connection for a disability characterized by multiple joint pain . . . .“ Its ultimate finding

was that “the preponderance of the evidence is against the claim of service connection

for a disability characterized by multiple joint pain . . .“ and its “ORDER” “denied”

“[s]ervice connection for a disability characterized by multiple joint pain.”

       The Veterans Court’s order began by stating that Dye appealed a Board decision

“that denied his claim for disability compensation for multiple joint pain because his

disabilities were not service connected.” The court held that the Board’s “[f]ind[ing] that

Mr. Dye’s current multiple joint pain was not related to his in-service multiple joint

injuries or pain . . . is not clearly erroneous.” As Dye recognizes in his brief, we have no

jurisdiction to review that factual determination. Brief of Claimant-Appellant at 14, Dye

v. Nicholson, No. 07-7093 (Fed. Cir. Mar. 15, 2007). Under 38 U.S.C. § 7292(d)(2),

except for constitutional issues, 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.”

       The Veterans Court correctly held that, in these circumstances, the two

presumptions Dye invoked were irrelevant, and the Board therefore properly declined to

discuss them.

       The presumption in 38 U.S.C. § 105(a) states in relevant part:

              An injury or disease incurred during active military, naval, or
              air service will be deemed to have been incurred in line of
              duty and not the result of the veteran’s own misconduct
              when the person on whose account benefits are claimed
              was, at the time the injury was suffered or disease
              contracted, in active military, naval, or air service, whether
              on active duty or on authorized leave, unless such injury or




2007-7093                                     4
               disease was a result of the person’s own willful misconduct
               or abuse of alcohol or drugs.

       The presumption that an “injury or disease” incurred during service “will be

deemed to have been incurred in line of duty and not the result of the veteran’s own

misconduct” deals with the situation where there is a question whether the in-service

medical condition was incurred in “line of duty” or outside such duty because it resulted

from the veteran’s own misconduct. It has nothing to do with the only question in the

present case: whether Dye’s post-service medical problems were service connected,

i.e., were caused by his in-service medical problems.

       Dye apparently contends that because his present medical conditions are similar

to those he had in the service, the presumption somehow operates to relieve him of a

need to show that the current problems are related to, and the result of, those earlier

ones. In Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004), this court in substance

rejected that argument. As we there stated, id. at 1166-67:

               [T]he mere fact that a serviceman has suffered a service-
               connected disease or injury does not automatically lead to
               compensation for future disabilities . . . while section 105(a)
               establishes a presumption that the disease or injury incurred
               during active duty is service-connected, 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.
               (footnote omitted).


       In the present case, Dye did not show “a causal relationship” between his in-

service and post-service medical problems. The presumption cannot fill that gap and,

therefore, is irrelevant.




2007-7093                                    5
       The other presumption, captioned “Presumption of sound condition,” also relates

to a veteran’s medical problems while in service, and not to his current medical

condition. The presumption states that, for “purposes of section 1110 . . .”

               every veteran shall be taken to have been in sound condition
               when examined, accepted, and enrolled for service, except
               as to defects, infirmities, or disorders noted at the time of the
               examination, acceptance, and enrollment, or where clear
               and unmistakable evidence demonstrates that the injury or
               disease existed before acceptance and enrollment and was
               not aggravated by such service. 38 U.S.C. § 1111.

       Section 1110 provides compensation for veterans “[f]or disability resulting from

personal injury suffered or disease contracted in line of duty, or for aggravation of a

preexisting injury suffered or disease contracted in line of duty, in the active military,

naval, or air service, during a period of war . . . .”

       The “presumption of sound condition” addresses the situation where a question

arises whether a veteran’s medical problems that arose during service existed before he

joined the armed forces and, therefore, were not incurred “in line of duty.” In that case,

as the Veterans Court stated, “the injury is presumed to have occurred in service unless

clear and unmistakable evidence demonstrates that the injury or disease existed before

acceptance and enrollment and was not aggravated by such service.” Here there is no

contention that prior to his service Dye already had multiple joint pains.

       Dye does not contend that there is a presumption that because his current

medical problems are similar to those he had during service, they are related to the

latter. At oral argument, however, he stated that the presumptions he invokes may

significantly affect a veteran in other contexts, such as treatment in Department medical

facilities. That may well be, but it is not a valid reason for requiring the Department to




2007-7093                                       6
consider and apply those presumptions in this case.         Adjudicatory tribunals, both

administrative and judicial, customarily decide only the issues presented in the cases

before them and not issues that may arise in other contexts in other cases. There is no

principle that requires a tribunal to decide an issue that may arise in another case – yet

such an advisory opinion apparently is what Dye seeks.


                                     CONCLUSION

      The judgment of the Veterans Court is

                                      AFFIRMED.




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