Matwijiszyn v. Wilkie

Case: 20-1071 Document: 32 Page: 1 Filed: 11/06/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

GREGORY MATWIJISZYN, STEPHEN
MATWIJISZYN, SUBSTITUTED FOR STEFAN
MATWIJISZYN,
Claimants-Appellants

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2020-1071
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-1963, Judge Amanda L. Mere-
dith.
______________________

Decided: November 6, 2020
______________________

KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, for claimants-appellants.

SEAN LYNDEN KING, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD
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2 MATWIJISZYN v. WILKIE

KIRSCHMAN, JR.; BRIAN D. GRIFFIN, BRANDON A. JONAS, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
______________________

Before DYK, TARANTO, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
Stefan Matwijiszyn appeals from the final decision of
the United States Court of Appeals for Veterans Claims af-
firming the Board of Veterans’ Appeals’ denial of Mr. Mat-
wijiszyn’s entitlement to service connection for a nervous
condition. We dismiss for lack of jurisdiction.
BACKGROUND
Mr. Matwijiszyn served on active duty in the United
States Army from November 1956 to April 1958. He un-
derwent two preservice medical examinations, both of
which reported “abnormal” psychiatric findings. J.A. 19,
130. A May 1953 examination summarized “defects and
diagnoses” as “[a]nxiety [t]racts.” J.A. 131. A Novem-
ber 1956 examination summarized “defects and diagnoses”
as “[m]ild neurotic tendencies.” J.A. 20. Mr. Matwijiszyn
was nonetheless deemed fit for military service.
On several occasions during service, Mr. Matwijiszyn
sought mental health treatment. He complained of insom-
nia in December 1956 and was provisionally diagnosed
with “anxiety neurosis.” J.A. 21. A subsequent medical ex-
amination reported “[n]o neuropsychiatric disease.” J.A. 2.
Mr. Matwijiszyn’s complaints of insomnia persisted, and in
July 1957, he was diagnosed with “neurotic reaction” and
prescribed Thorazine. J.A. 24–25. In September 1957, he
was diagnosed with “emotional immaturity with habit for-
mation.” J.A. 33.
In 1965, Mr. Matwijiszyn filed a formal claim with the
Veterans Administration (VA) seeking compensation for a
service-connected “nervous condition.” J.A. 28. After
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MATWIJISZYN v. WILKIE 3

reviewing Mr. Matwijiszyn’s preservice and service medi-
cal records, and his post-service medical records reflecting
diagnoses for depressive-psychotic reaction and depres-
sion-tension, the VA regional office (RO) denied Mr. Mat-
wijiszyn’s claim in July 1966. The RO reasoned that the
“[r]ecords show that the veteran’s disability, whatever its
nature or diagnosis, preexisted service,” and that “[t]he in-
cidents in service represented the natural progress of the
disability and do[] not constitute aggravation.” J.A. 34.
In December 2005, Mr. Matwijiszyn requested that the
VA reopen his claim. Considering both the record at the
time of the 1966 decision and new evidence (including a
2007 VA examination of Mr. Matwijiszyn and a 2007 state-
ment from a doctor who had treated him), the RO granted
Mr. Matwijiszyn service connection for paranoid schizo-
phrenia effective December 5, 2005. J.A. 49–50.
Several years later, in October 2012, Mr. Matwijiszyn
filed a request to revise the 1966 rating decision on the
grounds of clear and unmistakable error (CUE). He alleged
that in 1966, the RO failed to correctly apply 38 U.S.C.
§ 1111 1 and 38 C.F.R. § 3.303(b). Specifically, Mr. Matwi-
jiszyn asserted that, contrary to the RO’s conclusion, he
“was entitled to the 38 U.S.C. § 1111 presumption of sound-
ness because his entrance examination did not note a psy-
chiatric diagnosis,” and the record did not contain clear and
unmistakable evidence that both his psychosis preexisted
service and was not aggravated by service. J.A. 62–63.
With respect to 38 C.F.R. § 3.303(b), Mr. Matwijiszyn ar-
gued that he was entitled to service connection because no

1 At the time of the 1966 rating decision, current
§ 1111 was designated as § 311. In 1991, Congress redes-
ignated sections of chapters 11 through 42 of title 38 of the
U.S. Code. See Department of Veterans Affairs Codifica-
tion Act, Pub. L. No. 102-83, § 5(a), 105 Stat. 378, 406
(1991). We refer to the current version of the statute.
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4 MATWIJISZYN v. WILKIE

etiological link is required between the condition noted in
service and the subsequently diagnosed disability, and he
“suffered from psychiatric symptomatology in service and
this symptomatology continued post-service and resulted
in a diagnosis of psychotic depression.” J.A. 61. The VA
denied Mr. Matwijiszyn’s request to revise the 1966 rating
decision. Mr. Matwijiszyn appealed to the Board of Veter-
ans’ Appeals (Board).
On appeal, the Board declined to revise the 1966 rating
decision on the basis of CUE, concluding that the “1966 rat-
ing decision was based on the correct facts and law as they
were known and existed at that time.” J.A. 98. The Board
found Mr. Matwijiszyn’s “reliance on the fact that no diag-
nosis of a psychiatric disorder . . . was made at the time of
his entry into service” to be “misplaced,” because “[t]he law
does not require a diagnosis be made at the time of entry,
only that ‘defects, infirmities or disorders’ be ‘noted.’”
J.A. 102. Finding that Mr. Matwijiszyn’s pre-service exam-
inations “clearly demonstrate[] that [he] was noted to have
a psychiatric defect or irregularity,” the Board agreed with
the RO that the presumption of soundness did not apply.
J.A. 103. The Board further concluded that there was no
CUE in the RO’s failure to apply the chronicity and conti-
nuity of symptomatology provisions of 38 C.F.R. § 3.303(b),
because “[o]nce a finding is made that a disability preex-
isted service, service connection is no longer considered on
a direct basis” under § 3.303, “but on the basis of aggrava-
tion” under § 3.306. J.A. 103–04. Because the “RO’s deci-
sion determined that there was no aggravation beyond the
natural progression of the Veteran’s psychiatric disability
in service . . . based upon a weighing of evidence and rea-
sonable minds could differ as to the outcome,” the Board
determined that there was no CUE in the RO’s decision.
J.A. 104. Mr. Matwijiszyn appealed to the Court of Ap-
peals for Veterans Claims (Veterans Court).
The Veterans Court affirmed. It determined that it
“need not address the merits” of Mr. Matwijiszyn’s
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MATWIJISZYN v. WILKIE 5

argument under § 1111 2 that the presumption of sound-
ness should have been applied, because even assuming
that the Board erred as a matter of law, Mr. Matwijiszyn
“fail[ed] to demonstrate that any error is prejudicial to the
outcome of his motion to revise the 1966 rating decision” as
required to demonstrate CUE. Matwijiszyn v. Wilkie,
No. 16-1963, 2019 WL 3241655, at *5 (Vet. App. July 18,
2019). Because Mr. Matwijiszyn did “not identify any spe-
cific evidence in 1966 that shows that a psychosis mani-
fested in service,” the Veterans Court determined that he
failed to demonstrate that the Board “would have found
that application of § 3.303(b) would have resulted in a man-
ifestly changed outcome.” Id. at *6. Considering the facts,
including the military’s classification of the conditions in
Mr. Matwijiszyn’s service medical records as “psychoneu-
rotic disorders or character and behavior disorders” and
the multiple uses for Thorazine, the Veterans Court found
that “it is not absolutely clear that application of § 3.303(b)
would have resulted in an award of service connection” for
psychosis. Id. at *6–7. Accordingly, the Veterans Court
decided that “any error by the Board in its analysis of the
presumption of soundness is harmless.” Id. at *7. Mr. Mat-
wijiszyn timely appealed to this court. 3

2 The Veterans Court noted that the Board incor-
rectly identified the applicable presumption of sound con-
dition as § 1132 (formerly § 332, applicable during
peacetime) rather than § 1111 (formerly § 311, applicable
during wartime), but found the misidentification immate-
rial, as the pertinent language of both statutes was essen-
tially identical.
3 On October 30, 2020, counsel for appellant filed a no-

tice indicating that Mr. Matwijiszyn had died and that
Mr. Matwijiszyn’s sons sought to be substituted for
Mr. Matwijiszyn as claimants before the VA and in this ap-
peal. Notice of Death at 1–2, Matwijiszyn v. Wilkie,
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DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Githens v. Shinseki, 676 F.3d
1368, 1371 (Fed. Cir. 2012). We have jurisdiction to “decide
any challenge to the validity of any statute or regulation or
any interpretation thereof brought under this section, and
to interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” 38 U.S.C.
§ 7292(c). We may not review “a challenge to a factual de-
termination” or “a challenge to a law or regulation as ap-
plied to the facts of a particular case” absent a
constitutional issue. Id. § 7292(d)(2).
“CUE provides a means for collateral attack on a final
decision of an RO.” Cook v. Principi, 318 F.3d 1334, 1342
(Fed. Cir. 2002) (en banc). To constitute CUE, an alleged
error must first “have been outcome determinative,” and
second, “must have been based upon the evidence of record
at the time of the original decision.” Id. at 1344 (first citing
Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999); and
then citing Pierce v. Principi, 240 F.3d 1348, 1354 (Fed. Cir.
2001)). CUE “must be the sort of error which, had it not
been made, would have manifestly changed the outcome at
the time it was made.” Id. at 1343 (quoting Russel v. Prin-
cipi, 3 Vet. App. 310, 314 (1992) (en banc)).

No. 20-1071 (Fed. Cir. Oct. 30, 2020), ECF No. 29. We treat
this notice as a motion to substitute the deceased’s sons,
Gregory and Stephen Matwijiszyn, as appellants, and
hereby grant the motion. This is permissible as the one-
year period to file a formal claim with the Department of
Veterans Affairs has not yet run, and substitution is sepa-
rate from considerations of standing and does not itself es-
tablish entitlement. See Merritt v. Wilkie, 965 F.3d 1357,
1360–62 (Fed. Cir. 2020).
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On appeal, Mr. Matwijiszyn argues that the Veterans
Court relied on the same misinterpretations of 38 U.S.C.
§ 1111 and 38 C.F.R. § 3.303(b) as the Board. Appellant’s
Br. 3. Mr. Matwijiszyn also argues that the Veterans Court
failed to address his arguments that “the Board had incor-
rectly determined that the presumption of soundness . . .
did not apply.” Id. at 8. We disagree.
The Veterans Court expressly acknowledged Mr. Mat-
wijiszyn’s arguments that the Board misinterpreted these
provisions but determined that it need not resolve those ar-
guments to decide Mr. Matwijiszyn’s case. Instead, the
Veterans Court decided that Mr. Matwijiszyn failed to
demonstrate CUE because, even assuming that the Board
made the legal errors he alleged, Mr. Matwijiszyn “fail[ed]
to demonstrate that any error is prejudicial to the outcome
of his motion to revise the 1966 rating decision.” Matwi-
jiszyn, 2019 WL 3241655, at *5; see also id. at *6 (conclud-
ing that Mr. Matwijiszyn “has not demonstrated that the
Board in 2015 would have found that application of
§ 3.303(b) would have resulted in a manifestly changed
outcome”). The Veterans Court’s conclusion that any legal
error by the Board is “harmless,” id. at *7, is a factual de-
termination that we lack jurisdiction to review. Pitts
v. Shinseki, 700 F.3d 1279, 1286 (Fed. Cir. 2012) (conclud-
ing that argument that error was not harmless “challenges
the [Veterans Court’s] application of law to fact and there-
fore falls outside this court’s jurisdiction” (citing 38 U.S.C.
§ 7292(d)(2))); Newhouse v. Nicholson, 497 F.3d 1298, 1302
(Fed. Cir. 2007) (stating that 38 U.S.C. § 7292(d)(2) “pre-
vents us from reviewing Mr. Newhouse’s contentions re-
garding actual prejudice”); Conway v. Principi, 353 F.3d
1369, 1375 (Fed. Cir. 2004) (“[T]he ultimate conclusion of
the effect of the rule of prejudicial error on this case is be-
yond our jurisdiction.”).
We are also unpersuaded by Mr. Matwijiszyn’s argu-
ment, without further explanation, that the Veterans
Court’s prejudice analysis itself “relies upon a
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8 MATWIJISZYN v. WILKIE

misinterpretation of both § 1111 and § 3.303(b).” Reply
Br. 5; see also Appellant’s Br. 9. The misinterpretation
Mr. Matwijiszyn appears to allege is the failure to apply
the presumption of soundness. Appellant’s Br. 3–4, 10.
But the Veterans Court’s prejudice analysis was expressly
predicated on crediting Mr. Matwijiszyn’s argument “that
the presumption of soundness should have applied.” Mat-
wijiszyn, 2019 WL 3241655, at *5. And Mr. Matwijiszyn
offers no basis to question that the Veterans Court did, in
fact, apply the presumption in its analysis.
Similarly insufficient to invoke our jurisdiction is
Mr. Matwijiszyn’s argument that once the presumption of
soundness is properly applied, “a manifestly different out-
come in the form of an award of presumptive service con-
nection was required as a matter of law.” Appellant’s Br. 4.
This argument involves the application of law to fact and
ultimately turns on Mr. Matwijiszyn’s disagreement with
how the Veterans Court weighed the evidence—an issue
beyond our jurisdiction. See 38 U.S.C. § 7292(d)(2). Con-
sidering the facts, including the multiple uses for Thora-
zine and the military’s categorization of Mr. Matwijiszyn’s
in-service conditions as psychoneurotic disorders or char-
acter and behavior disorders, rather than as psychotic dis-
orders, the Veterans Court found that Mr. Matwijiszyn had
failed to demonstrate that applying the presumption of
soundness and § 3.303(b) would have changed the outcome.
Matwijiszyn, 2019 WL 3241655, at *6–7. Reconsideration
of this factual determination is beyond our jurisdiction.
CONCLUSION
We have considered Mr. Matwijiszyn’s remaining argu-
ments and find them equally ineffective in invoking the ju-
risdiction of this court. Accordingly, we dismiss
Mr. Matwijiszyn’s appeal.
DISMISSED
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MATWIJISZYN v. WILKIE 9

COSTS
No costs.