United States Court of Appeals for the Federal Circuit
2009-7099
REIDA J. BASTIEN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Douglas J. Rosinski, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., of Columbia,
South Carolina, argued for claimant-appellant.
Hilliary A. Stern, Senior Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-appellee.
With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief was David
J. Barrans, Deputy Assistant General Counsel, Office of General Counsel, United States
Department of Veterans Affairs, 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
2009-7099
REIDA J. BASTIEN
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-3428, Chief
Judge William P. Greene, Jr.
______________________________
DECIDED: March 24, 2010
______________________________
Before NEWMAN, FRIEDMAN, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge FRIEDMAN. Dissenting opinion filed by
Circuit Judge NEWMAN.
FRIEDMAN, Circuit Judge.
This appeal challenges the decision of the United States Court of Appeals for
Veterans Claims (“Veterans Court”), affirming the decision of the Board of Veterans’
Appeals (“Board”), that the death of the appellant Reida J. Bastien (“Mrs. Bastien”)’s
husband, Robert W. Bastien (“Mr. Bastien”), did not result from his military service. We
conclude that all but one of these substantive contentions involve factual issues that we
have no jurisdiction to review and that a recent decision of this court requires rejection
of her remaining contention. We also reject the claim that the Veterans Court
improperly struck the initial version of her opening brief for violating its procedural rule
prohibiting the citation of its nonprecdential opinion. We therefore affirm.
I
A. During his military service from May 1972 to May 1976, Mr. Bastien had
worked at a university radiation facility, where he participated in experiments testing the
effects of radiation on monkeys. He placed the monkeys in the reactor before they were
exposed to radiation and retrieved them after the exposure. Personnel within the
reactor facility were required to wear a dosimeter badge to monitor radiation exposure
during work. He was assigned to work in the reactor facility for at least thirty-one days.
In 1995, Mr. Bastien died of pneumonia resulting from Waldenström’s
macroglobulinemia, a rare blood cancer. He was diagnosed with other rare forms of
lymphoma, including non-Hodgkin’s lymphoma.
Shortly before his death, he filed a claim for compensation with the Department
of Veterans Affairs (“Department”) for “lymphoma” caused by exposure to ionizing
radiation during his military service, from both his time at the reactor facility and from in-
service sinus x-rays he received in 1972. After his death, Mrs. Bastien applied for
dependency and indemnity compensation, and for educational benefits for her children,
on the same basis.
B. The procedural history of Mrs. Bastien’s claim is convoluted. The case went
before the Board and the Veterans Court several times. In its final decision, the Board
denied her claim, finding that the preponderance of the evidence did not establish that
her husband’s death was attributable to radiation exposure during his military service.
2009-7099 2
The evidence before the Board was conflicting. Mrs. Bastien submitted reports
from two physicians. Dr. Hall, a clinical faculty member of the Medical University of
South Carolina Hollings Cancer Center, stated that “there has been a reported case of
Waldenström’s [m]acroglobulinemia in a patient treated with radiation therapy” and that
Mrs. Bastien’s “husband’s cancer, therefore, could be related to radiation exposure.”
The other physician, Dr. Weiss, a Department employee, concluded that “it is plausible
that low dose radiation exposure by the veteran “‘may [have] been causal in his
development of Waldenström’s macroglobulinemia,’” and that “a radiation badge may
be insensitive to chronic low dose radiation,” which could “account for the absence of an
accumulated dose of radiation for the veteran.”
In addition to these two physicians’ reports, Mrs. Bastien presented her own
estimate of the amount of radiation her husband had received. Her estimate, which she
subsequently updated, was based on “[her] math knowledge . . . research fundamentals
and known facts.” (Emphasis omitted). Her studies concluded that her husband had
received substantially more radiation than the physicians’ reports had indicated. She
also concluded that, based on the radiation dosage she had calculated, some experts
would agree that such exposure would cause three out of 10,000 individuals to develop
cancer. Mrs. Bastien also submitted a letter from a private nuclear engineering
company, the Delphi Groupe, Inc., which stated that Mrs. Bastien may have
overestimated her husband’s radiation exposure and thus should rely instead on the
opinions of Drs. Hall and Weiss.
The Department submitted reports by two other physicians it employed. Dr.
Mather, its Chief Public Health and Environmental Hazards Officer, stated that “[i]n light
2009-7099 3
of the veteran’s low reported radiation dose and uncertainty about the risk of plasma cell
malignancies after radiation exposure . . . it is unlikely that the veteran’s Waldenström’s
macroglobulinemia can be attributed to exposure to ionizing radiation in service.” Dr.
Mather also stated that it was “not possible” for her office to provide “an independent”
estimate of the amount of radiation Mr. Bastien had received. (A Department regulation
provides for the Department to prepare, in radiation exposure cases, “a dose estimate,
to the extent feasible, based on available methodologies.” 38 C.F.R. § 3.311.)
Dr. Pasquale, a hematologist, who was also an associate professor of medicine
at Albany Medical College, summarized in detail “selected published data from peer
reviewed journals that address the risk of developing NHL and WM [non-Hodgkin’s
lymphoma and Waldenström’s macroglobulinemia] following radiation exposure.” He
stated that “[b]ased on the above data, I must conclude that this veteran’s radiation
exposure is extremely unlikely to have caused his cancer.”
The Board “conclude[d] that, for the purpose of this decision, the veteran’s in-
service duties included exposure to ionizing radiation.” After a fairly detailed summary
and discussion of the evidence, the Board “conclude[d]” that
the December 1998 opinion of the physician designee of the
VA [Department] Under Secretary for Health [Dr. Mather]
that “it was unlikely” that the veteran’s Waldenstrom’s
macroglobulinemia could be attributed to exposure to
ionizing radiation inservice [sic] in light of the low reported
dose, and to the September 1999 opinion [of Dr. Pasquale]
that the veteran’s radiation exposure was “extremely
unlikely” to have caused his cancers are of greater probative
value than the June 1995 opinion from Dr. Hall, the January
1996 opinion from a VA physician [Dr. Weiss], or the April
2002 opinion from the Delphi Groupe, Inc.
2009-7099 4
“The Board reached this conclusion because . . . the opinions relied on by the
widow were based on a review of something less than a review of all of the evidence,
and they included conditional phrases like ‘could be,’ ‘may be,’ ‘it was plausible,’ ‘lent
credence to the possibility,’ and/or ‘would make it difficult to refute.’”
The Board stated that “even assuming that the veteran was exposed to some
level of ionizing radiation while on active duty, service connection cannot be granted . . .
because the preponderance of the competent evidence is against finding a nexus
between any such exposure and these claimed disabilities.”
The Board stated that in so concluding it had “not overlooked the widow’s and
her representative’s written statements to the [Regional Office] as well as the hearing
testimony. While lay witnesses can testify as to the visible symptoms or manifestations
of a disease or disability, lay statements as to the origins of the veteran’s disabilities are
not probative because lay persons are not competent to offer medical opinions.
Likewise, while it is argued that the voluminous medical literature provided by the
claimant is supportive of the claim, generic texts, which do not address the facts in this
particular claimant’s case, and with a sufficient degree of medical certainty, do not
amount to competent medical evidence of causality. Therefore, the Board assigns more
weight to the objective medical evidence of record as outlined above.” (Internal
citations omitted).
In affirming, the Veterans Court stated that “[i]t is the Board’s responsibility, not
this Court’s, to review and assess the credibility and probative value of the evidence of
record.” The court held that the Board had “considered and weighed the dose
estimates submitted by Mrs. Bastien,” but “rather than accepting her dose estimates,
2009-7099 5
the Board relied on dose estimates provided by VA experts that were factually
supported by the record. R. at 404, 425-41, 463, 524-35. The board found Mrs.
Bastien’s dose estimates not probative because she was not competent to offer such
evidence. R. at 18. The Board’s reasons and bases for relying on dose estimates
provided by VA experts rather than Mrs. Bastien are plausible and therefore not clearly
erroneous.” The court further stated that “[i]t is the responsibility of the Board to weigh
the evidence, including medical evidence, and to determine where to give credit and
where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998). Pursuant to
this duty, the Board may accept one medical opinion and reject others.” The court
concluded that the Board justifiably had “found the medical opinions of Drs. Mather and
Pasquale more probative” than the medical opinions of the physicians upon which Mrs.
Bastien relied.
II
Unless an appeal from the Veterans Court “presents a constitutional issue,” 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.” 38 U.S.C. § 7292(d)(2).
In other words, except for constitutional issues, this court has no jurisdiction to review
the Veterans Court’s factual determinations. See Johnson v. Derwinski, 949 F.2d 394,
395 (Fed. Cir. 1992).
Except for the issue discussed in Part III below, Mrs. Bastien’s other substantive
contentions raise only factual questions. The two underlying issues before the Board
were (1) how much radiation Mr. Bastien had received during his military service and (2)
whether such radiation was the likely cause of his cancer. The evidence on both was
2009-7099 6
conflicting and, as the Veterans Court properly pointed out, it was the Board’s
responsibility to resolve those factual disputes.
Mrs. Bastien’s basic argument is that the Board gave too much weight to the
expert opinions of the Department’s witnesses and insufficient weight to her expert
witnesses and other evidence. Although she frames her argument as a challenge to the
Board’s failure to consider her evidence, we have pointed out above that the Board fully
and adequately considered and discussed all the relevant evidence in the case,
including Mrs. Bastien’s. Mrs. Bastien’s assertion that the Board did not consider her
evidence thus necessarily was a contention that it did not give that evidence the weight
she believed it should have received.
The evaluation and weighing of evidence and the drawing of appropriate
inferences from it are factual determinations committed to the discretion of the fact-
finder. We lack jurisdiction to review these determinations.
III
The only substantive issue we have jurisdiction to review is Mrs. Bastien’s
contention that the Board improperly relied on the Department’s medical witnesses
because it did not affirmatively establish their qualifications as medical experts. Our
recent decision in Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), is controlling on
this point and requires rejection of Mrs. Bastien’s contention.
The question in Rizzo was whether Rizzo’s eye diseases were caused by his
exposure to ionizing radiation during his military service. The expert medical opinion on
this issue was in conflict and the Board gave greater weight to the Department’s
expert’s opinion. Id. at 1290. Rizzo argued that the Department had erred because it
2009-7099 7
did not affirmatively establish the physician’s qualifications to provide such expert
evidence. Id. This court rejected that contention. It stated:
Absent some challenge to the expertise of a VA expert, this
court perceives no statutory or other requirement that VA
must present affirmative evidence of a physician’s
qualifications in every case as a precondition for the Board’s
reliance upon that physician’s opinion. Indeed, where as
here, the veteran does not challenge a VA medical expert’s
competence or qualifications before the Board, this court
holds that VA need not affirmatively establish that expert’s
competency.
Id. at 1291.
Thus, under Rizzo, the Board is not required to “present affirmative evidence of a
physician’s qualifications in every case as a precondition for the Board’s reliance upon
that physician’s opinion.” Id.
Mrs. Bastien attempts to distinguish Rizzo on the ground that, unlike in that case,
here she did “challenge a VA medical expert’s competence or qualifications before the
Board.” The record does not support this claim.
Mrs. Bastien took two actions relating to the qualifications of the Department’s
medical experts. First, she asked the Department to state Dr. Mather’s “qualifications
(degrees and certifications),” which the Department did. A request for information about
an expert’s qualifications, however, is not the same as a challenge to those
qualifications. Indeed, one may assume that litigants who are told an expert witness’
qualifications frequently may conclude that there is no reasonable basis for challenging
those qualifications.
Mrs. Bastien’s second action was a letter to the Department challenging Dr.
Pasquale’s medical opinion, on the ground that he was not an independent medical
2009-7099 8
expert because he was employed by the Department. This challenge questioned not
his medical competence or expertise, but rather his objectivity. Indeed, if a physician’s
employment with the Department precluded his acting as an expert witness before the
Board, it also would appear to disqualify Mrs. Bastien’s own medical expert, Dr. Weiss,
who also was a Department employee. The Department, however, is explicitly and
implicitly authorized to use its own employees as experts. See 38 U.S.C. §§ 5103A(d),
7109(a); 38 C.F.R. § 20.901.
There is a sound practical reason why any challenge “to the expertise of a VA
expert” (Rizzo) must set forth the specific reasons why the litigant concludes that the
expert is not qualified to give an opinion. Unless there is such particularization, the trier
of facts is unable to evaluate and determine the validity of the challenge to the expert’s
qualifications. The effect of treating Mrs. Bastien’s allegations as sufficient to require
the Department affirmatively to establish the physician’s expertise would be to vitiate the
holding in Rizzo that ordinarily the Department “need not affirmatively establish that
expert’s competency.”
IV
Rule 30(a) of the Veterans Court’s Rules of Practice and Procedure provides, in
pertinent part, that a party “may not cite as precedent any action designated as
nonprecedential by the Court.” In two footnotes in her opening brief before that court,
Mrs. Bastien cited nonprecedential decisions of that court. On the government’s
motion, the Veterans Court struck that brief and directed Mrs. Bastien to “file a brief
which complies with the rules of the Court” within thirty days.
2009-7099 9
Mrs. Bastien challenges that order, contending that her brief complied with the
rule because she cited the two nonprecedential decisions not “as precedent” but only for
the factual information they contained. She apparently filed such a corrected brief and
does not contend or attempt to show that she suffered any prejudice from the order.
The Veterans Court has broad discretion to interpret and apply its Rules of
Practice and Procedure. See Carbino v. West, 168 F.3d 32, 35 (Fed. Cir. 1999). The
Veterans Court ruling involved either an application of its rule to the facts of Mrs.
Bastien’s case, which we have no jurisdiction to review, or an interpretation of the rule,
which was neither clearly erroneous nor an abuse of discretion.
CONCLUSION
The judgment of the Veterans Court is
AFFIRMED.
2009-7099 10
United States Court of Appeals for the Federal Circuit
2009-7099
REIDA J. BASTIEN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-3426, Chief
Judge William P. Greene, Jr.
NEWMAN, Circuit Judge, dissenting.
From the record before the Veterans Court, the cause of Waldenstrom’s
macroglobulinemia is not known; indeed, the cause of most cancers does not appear to be
known, despite advances of science.
A physician at the Hollings Cancer Center of the Medical University of South
Carolina stated that the rare cancer that killed Mr. Bastien was known to have appeared in
a patient treated with radiation, and all of the medical witnesses, whichever side retained
them, stated that it was not possible to know whether Mr. Bastien’s macroglobulinemia
cancer was traceable to his military assignment as a technician administering radiation
tests to monkeys. The witnesses attempted to estimate the extent of his radiation
exposure, offered various opinions as to the likelihood that this exposure led to this rare
cancer, and acknowledged the uncertainties of such views.
If the proper legal standard for determining service connection is whether this
radiation exposure was “more likely than not” to have caused this rare cancer, I agree that
the sparse evidence and speculative medical opinions do not satisfy that standard.
However, I suggest that the correct standard for rare diseases in such situations, on
application of the statutory policy governing veterans’ benefits, is not whether a
preponderance of evidence establishes that causation was more likely than not, but
whether it is medically possible that the in-service activity caused the cancer. Such a
standard is appropriate when the disease is sufficiently rare that adequate data to prove or
disprove causation do not exist. In such case, when qualified witnesses state that the
specific exposure “possibly” caused the disease, and no evidence suggests any other
cause, national policy is served by deeming the burden to have been met.
The precedent on which the Board and the Veterans Court relied arose from
diseases for which there is sufficient medical knowledge that a “more likely than not”
standard of proof is reasonable. However, the statute governing veterans’ claims adjusts
the burdens so that doubt is resolved in favor of the veteran. Applying this guidance to rare
diseases where there is insufficient data and experience to establish a reliable etiology of
the disease, the reasonable standard is whether the service activity could “possibly” have
caused the disability or death, rather than whether it was more likely than not to have
caused the disability or death. This standard best implements the legislative policy. I
would remand for redetermination on this basis.
2009-7099 2