Frick v. McDonough

Case: 21-2278 Document: 28 Page: 1 Filed: 10/25/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

ROBERT F. FRICK,
Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________

2021-2278
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-1009, Judge Joseph L. Falvey,
Jr.
______________________

Decided: October 25, 2022
______________________

AMANDA SUNDAY, GloverLuck, LLP, Dallas, TX, argued
for claimant-appellant. Also represented by JULIE L.
GLOVER.

TANYA KOENIG, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
MCCARTHY; BRIAN D. GRIFFIN, JONATHAN KRISCH, Office of
Case: 21-2278 Document: 28 Page: 2 Filed: 10/25/2022

2 FRICK v. MCDONOUGH

General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________

Before LOURIE, TARANTO, and STARK, Circuit Judges.
TARANTO, Circuit Judge.
In 1961, Robert Frick filed a claim for veteran’s disa-
bility benefits with a regional office of the agency now
called the Department of Veterans Affairs (VA), alleging
that he had disability-causing recurrent shoulder disloca-
tions connected to his military service. The regional office
denied Mr. Frick’s claim in a final rating decision in 1961.
In May 2018, however, VA’s Board of Veterans’ Appeals re-
opened Mr. Frick’s claim based on new and material evi-
dence and found his identified shoulder conditions to be
service connected. Implementing the Board’s May 2018 de-
cision, VA awarded him benefits for his shoulder disabili-
ties with an effective date of January 30, 2014, the day he
filed his successful request to reopen his claim.
Mr. Frick appealed that effective-date ruling to the
Board, seeking an earlier effective date back to 1961 on the
ground that the 1961 rating decision was based on clear
and unmistakable error (CUE). Understanding Mr. Frick’s
CUE claim to allege that VA, in 1961, erroneously denied
him a statutory presumption of soundness, see 38 U.S.C.
§ 1111 (current version), the Board found no such error—
specifically, no CUE in VA’s 1961 ruling that his benefits
claim failed under that presumption’s element addressing
aggravation of a preexisting condition. Mr. Frick appealed
to the Court of Appeals for Veterans Claims (Veterans
Court), where he did not urge a Board error regarding the
presumption of soundness but, instead, contended that the
Board erroneously failed to consider a CUE claim based on
the presumption of aggravation, see 38 U.S.C. § 1153 (cur-
rent version), which he said he had raised to the Board.
The Veterans Court affirmed the Board’s decision,
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FRICK v. MCDONOUGH 3

concluding that the Board’s ruling on the aggravation ele-
ment of the presumption of soundness effectively disposed
of any CUE claim based on the presumption of aggravation.
Frick v. McDonough, No. 20-1009, 2021 WL 2149678 (Vet.
App. May 27, 2021).
Mr. Frick appeals to this court. The Veterans Court’s
decision raises questions of law regarding both that court’s
jurisdiction over and the merits of a CUE claim by Mr.
Frick invoking the presumption of aggravation. Because
the Veterans Court decision may well have relied on legal
error in one or both respects, we vacate the decision insofar
as it decided a CUE claim invoking the presumption of ag-
gravation, and we remand to the Veterans Court for con-
sideration of its jurisdiction over such a claim and, if it
properly finds jurisdiction, for reconsideration of that
claim. No other challenge being presented, we otherwise
affirm the decision of the Veterans Court.
I
A
Mr. Frick served in the United States Army from Feb-
ruary to September 1961. Before entering service, Mr.
Frick suffered from recurrent shoulder dislocations, and in
the summer of 1960, he had surgery to repair his right and
left shoulders. In the months after the surgery, but before
entering service, Mr. Frick continued to experience shoul-
der difficulties and received an injection to help manage his
shoulder pain. In his service entrance examination report,
the examiner stated that Mr. Frick underwent bilateral
corrective surgery to treat his shoulder dislocations.
While in service, Mr. Frick repeatedly reported chronic
shoulder dislocations, and he had several medical exami-
nations. Notes from the examinations report Mr. Frick’s
pre-service chronic bilateral shoulder dislocations and cor-
rective surgery, indicating that Mr. Frick’s recurrent
shoulder dislocations pre-dated duty. J.A. 35 (noting that
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4 FRICK v. MCDONOUGH

the dislocations existed prior to service, “EPTS,” and did
not originate in the line of duty, “LOD”); J.A. 40 (same). In
August 1961, Mr. Frick was hospitalized for further evalu-
ation of his shoulder dislocations, and the medical exam-
iner noted that Mr. Frick’s shoulder condition “existed
prior to service and . . . had not been service aggravated”
and recommended that Mr. Frick be separated from ser-
vice. J.A. 41. On September 11, 1961, a military medical
board determined that Mr. Frick’s shoulder condition ex-
isted before service, was not incurred in the line of duty,
and was not aggravated in service; it recommended Mr.
Frick’s separation from the Army; and Mr. Frick was then
honorably discharged.
In October 1961, Mr. Frick filed a claim with the local
VA regional office, seeking wartime-service-based disabil-
ity benefits under 38 U.S.C. § 310 (now 38 U.S.C. § 1110),
alleging that his shoulder conditions were disabling and
had been aggravated in service. On December 8, 1961, the
regional office denied his claim. It found that, before his
Army service, Mr. Frick had continuing severe shoulder
pain even after his corrective surgery in 1960, necessitat-
ing an injection for pain management; his shoulder disabil-
ities were “noted at induction”; and he spent a
“considerable part” of his service on restricted duty and in
the hospital (nearly half of his eight months in service).
J.A. 54–55. The regional office concluded that, in light of
Mr. Frick’s pre-enlistment shoulder difficulties and his
brief time in service (the records from which did not indi-
cate new events producing injury), Mr. Frick’s shoulder
dislocations were “not permanently aggravated by service.”
J.A. 56. Mr. Frick did not appeal the 1961 rating decision,
so it became final.
B
After four times attempting without success to reopen
his rejected 1961 claim, Mr. Frick filed a request to reopen
his claim on January 30, 2014, in which, for the first time,
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FRICK v. MCDONOUGH 5

he alleged that he was attacked by another soldier while in
service and that the ensuing altercation aggravated his
shoulder dislocations. Based on this new and material ev-
idence, the Board eventually reopened Mr. Frick’s claim
and found that Mr. Frick’s shoulder disabilities were con-
nected to his service. BVA 18-27104, Docket No. 14-45 421,
2018 BVA LEXIS 78703 (May 1, 2018). VA’s Appeals Man-
agement Center then implemented the Board’s decision by
assigning an effective date of January 30, 2014—the date
Mr. Frick filed the successful request to reopen his claim.
Mr. Frick appealed to the Board, arguing that the 1961
rating decision was based on CUE, so that he was entitled
to an effective date of October 2, 1961—when he filed the
claim rejected in the 1961 rating decision. See 38 U.S.C.
§ 5109A; Ortiz v. McDonough, 6 F.4th 1267, 1270 (Fed. Cir.
2021). In particular, he argued that the 1961 decision con-
tained CUE in failing properly to apply the statutory pre-
sumption of soundness. The relied-on statute said in 1961:
For the purposes of section 310 of this title, every
veteran shall be taken to have been in sound con-
dition when examined, accepted, and enrolled for
service, except as to defects, infirmities, or disor-
ders noted at the time of the examination, ac-
ceptance, and enrollment, or where clear and
unmistakable evidence demonstrates that the in-
jury or disease existed before acceptance and en-
rollment and was not aggravated by such service.
38 U.S.C. § 311 (1958), now codified as 38 U.S.C. § 1111,
without change except that “310” is now “1110.” As the Su-
preme Court described the statute (governing wartime ser-
vice), “[i]f a veteran’s disability was not noted at the time
of entry into service, then the veteran is presumptively en-
titled to benefits unless the VA shows by a heightened bur-
den of proof that the disability ‘existed before . . . and was
not aggravated by such service.’” George v. McDonough,
142 S. Ct. 1953, 1957 (2022) (citing 38 U.S.C. § 1111); see
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6 FRICK v. MCDONOUGH

also George v. McDonough, 991 F.3d 1227, 1229 (Fed. Cir.
2021), aff’d, 142 S. Ct. 1953 (2022). Here, before the Board,
Mr. Frick argued that no preexisting disability was noted
in his service entrance exam, so he was entitled to the pre-
sumption of soundness in 1961. Mr. Frick further argued
that there was a double failure of rebuttal of the presump-
tion—no clear and unmistakable evidence that his shoul-
der condition preexisted service and no clear and
unmistakable evidence that the condition was not aggra-
vated by service. 1
On January 8, 2020, the Board rejected Mr. Frick’s
CUE claim. The Board observed that VA, in 1961, “did not
explicitly address or explain that the presumption of
soundness did not attach” to the claim before it. J.A. 82.
But, noting that a regional office at the time did not have
to provide a statement of reasons or bases for its decisions,
the Board reasoned that VA in 1961 did say “that the con-
dition was a defect noted at induction, existed prior to ser-
vice, and was not aggravated by service (which does speak
to the presumption of soundness),” a discussion that, the
Board concluded, made it “not clear” that VA in 1961 “did
not consider the presumption of soundness.” J.A. 83. The
Board concluded that “[a] review of the evidence available
at that time confirms that [it] was an accurate finding” that
“there was no aggravation of the pre-existing shoulder con-
dition.” J.A. 82; see J.A. 83 (same). Accordingly, the Board

1 Mr. Frick based his argument on the no-aggrava-
tion component of the statutory rebuttal standard, not on
the implementing regulations, which changed over time.
See George, 991 F.3d at 1230. As discussed infra, the par-
ties dispute whether Mr. Frick also fairly presented to the
Board a CUE claim invoking the separate statutory pre-
sumption of aggravation, 38 U.S.C. § 1153 (formerly § 353),
a dispute we leave for the Veterans Court to resolve on re-
mand.
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FRICK v. MCDONOUGH 7

could not “find that there is an error that is undebatable or
of the sort which had it not been made, would have mani-
festly changed the outcome at the time it was made,” i.e.,
could not find CUE. J.A. 83 (internal quotation marks
omitted).
C
In September 2020, Mr. Frick appealed the Board’s de-
cision to the Veterans Court. He argued that the Board
misapplied the law in concluding that the presumption of
soundness did not attach and, also, in determining that
there was no aggravation of Mr. Frick’s shoulder condition
under the separate statutory presumption of aggravation
prescribed by 38 U.S.C. § 353 (1958), which is now codified,
without substantive change, at 38 U.S.C. § 1153, and in
1961 stated: “A preexisting injury or disease will be consid-
ered to have been aggravated by active military, naval, or
air service, where there is an increase in disability during
such service, unless there is a specific finding that the in-
crease in disability is due to the natural progress of the dis-
ease.” 2 The Veterans Court initially affirmed the January
2020 Board decision. J.A. 113–22.
Mr. Frick then filed a motion for reconsideration, now
focusing on the presumption of aggravation stated in 38
U.S.C. § 1153. He argued that “once the Board determined
that the 1961 [regional office] did not err in determining
that he had a preexisting condition noted upon entry, [the
Board] was required to determine if the [regional office]
properly applied 38 U.S.C. § 1153 (formerly 38 U.S.C.

2 The current statute reads: “A preexisting injury or
disease will be considered to have been aggravated by ac-
tive military, naval, air, or space service, where there is an
increase in disability during such service, unless there is a
specific finding that the increase in disability is due to the
natural progress of the disease.” 38 U.S.C. § 1153.
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8 FRICK v. MCDONOUGH

§ 353),” specifically, “whether there was CUE in the 1961
[regional office’s] determination that Mr. Frick’s shoulder
condition did not increase in disability during service or
that any increase was due to the ‘natural progress’ of the
disease or injury.” J.A. 124. Mr. Frick emphasized that
“[s]ection 1153 involves a wholly separate analysis from
the aggravation prong in section 1111,” which the Board
failed to recognize, producing an inadequate Board analy-
sis of the presumption of aggravation. J.A. 124.
On May 27, 2021, the Veterans Court withdrew its ini-
tial decision and, on reconsidering the matter, still af-
firmed the January 2020 Board decision. Frick, 2021 WL
2149678. With respect to the presumption-of-aggravation
issue raised by Mr. Frick on reconsideration, the court rea-
soned that “although the Board does not specify whether
its [finding of no aggravation] applied to either the pre-
sumption of soundness analysis under § 311 or the pre-
sumption of aggravation analysis under § 353, the same
evidence weighs against both the second prong of the pre-
sumption of soundness analysis and the showing of aggra-
vation by the veteran under § 353.” Id. at *8. Based on
that determination, the court concluded that “the Board’s
failure to distinguish between” the two presumptions was
“harmless error.” Id. at *9.
Mr. Frick timely appealed.
II
Mr. Frick challenges the Veterans Court’s affirmance
of the Board’s decision, but not insofar as the Veterans
Court affirmed the Board’s rejection of a CUE claim based
on 38 U.S.C. § 1111, the presumption of soundness. Mr.
Frick limits his appeal to challenging the Veterans Court’s
affirmance of the Board insofar as that affirmance was of a
Board rejection of Mr. Frick’s CUE claim based on § 1153,
the presumption of aggravation. He argues that the Veter-
ans Court committed errors of law—misinterpreting 38
U.S.C. §§ 1111 and 1153 and its own authority to make
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FRICK v. MCDONOUGH 9

factual findings—and that, under the correct legal stand-
ards, the Veterans Court was required to remand his CUE
claim based on § 1153 (the presumption of aggravation) to
the Board for a more direct and fuller consideration than
the Board provided.
This court has jurisdiction to review a Veterans Court
decision “with respect to the validity of a decision of the
[Veterans] Court on a rule of law or of any statute or regu-
lation . . . or any interpretation thereof (other than a deter-
mination as to a factual matter) that was relied on by the
[Veterans] Court in making the decision.” 38 U.S.C.
§ 7292(a). Where, as here, no constitutional issue is pre-
sented, we lack jurisdiction to review the Veterans Court’s
factual determinations or application of law to the facts of
a particular case. Id. § 7292(d)(2).
Here, considering Mr. Frick’s challenges, we conclude
that the Veterans Court’s decision may well rest on legal
errors of two types—concerning that court’s jurisdiction
and concerning the court’s conclusion that the rejection of
the § 1111 CUE claim necessarily defeated a § 1153 CUE
claim. We vacate the Veterans Court decision insofar as it
decided a § 1153 CUE claim, and we remand for further
proceedings on that issue. See Colantonio v. Shinseki, 606
F.3d 1378, 1382 (Fed. Cir. 2010) (vacating and remanding
where the Veterans Court may have applied an erroneous
interpretation of the law). We otherwise affirm, no other
aspect of the Veterans Court decision being challenged in
this appeal.
A
In his appeal here, Mr. Frick proceeds on the premise
that he in fact raised to the Board a CUE claim based on
the presumption of aggravation. That premise implicates
the Veterans Court’s own jurisdiction. And the Veterans
Court did not decide whether he had actually raised such a
claim to the Board.
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10 FRICK v. MCDONOUGH

The Veterans Court has jurisdiction under 38 U.S.C.
§ 7252(a) only “to review decisions of the Board of Veterans’
Appeals.” “[I]n order to invoke the Veterans Court’s juris-
diction, the veteran’s appeal must challenge a ‘decision’ of
the Board ‘with respect to the benefit sought by the vet-
eran.’” Andre v. Principi, 301 F.3d 1354, 1359 (Fed. Cir.
2002) (quoting Maggitt v. West, 202 F.3d 1370, 1376 (Fed.
Cir. 2000)). We have long held that the Veterans Court,
under this provision, cannot exercise jurisdiction over a
claim that was never presented to or decided by the Board,
id. at 1361—though the jurisdictional bar does not pre-
clude considering new arguments in support of a claim that
was before the Board, Maggitt, 202 F.3d at 1377. And we
have also held, more particularly for the CUE context, that
“each ‘specific’ assertion of CUE constitutes a claim that
must be the subject of a decision by the [Board] before the
Veterans Court can exercise jurisdiction over it,” as each
“assertion of a particular [CUE] . . . constitutes a distinct
claim.” Andre, 301 F.3d at 1361.
It is undisputed before us that a claim of CUE respect-
ing the presumption of aggravation, under § 1153, is a dif-
ferent “claim” from a claim of CUE respecting the
presumption of soundness, under § 1111. The Veterans
Court did not say otherwise. Mr. Frick himself insisted to
the Veterans Court, when seeking reconsideration of the
initial affirmance, that § 1153 and § 1111 present distinct
legal questions. See J.A. 124.
Yet we see no clear determination by the Veterans
Court that Mr. Frick’s presumption-of-aggravation CUE
claim was actually presented to or decided by the Board. It
would be a legal error to assume jurisdiction over such a
claim without such a determination. The parties dispute
the answer to that question. For example, each side points
to passages in Mr. Frick’s brief to the Board and argues
about their proper interpretation. See Mr. Frick’s Opening
Br. at 9 (citing Mr. Frick’s brief to the Board and its argu-
ment discussing aggravation using the language of § 353,);
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FRICK v. MCDONOUGH 11

Oral Arg. at 34:30–35:07, 36:26–37:47 (same); Secretary’s
Response Br. at 24 (citing Mr. Frick’s brief to the Board and
its assertion that it would be “incorrect” to characterize Mr.
Frick’s claim “as a claim for aggravation of a preexisting
disability under 38 U.S.C. § 1153”). Moreover, the Board’s
decision, in the section on the “CUE argument,” cites § 311
and § 1111 (the presumption of soundness) but not § 353
and § 1153. J.A. 79–83. The correct determination on the
jurisdictional issue is not self-evident, and whether Mr.
Frick raised a § 1153 CUE claim to the Board requires “a
factual determination, outside the purview of our appellate
authority.” Comer v. Peake, 552 F.3d 1362, 1372 (Fed. Cir.
2009); see Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir.
2004) (same).
Accordingly, we vacate the Veterans Court decision, in-
sofar as it ruled on a § 1153 CUE claim, and remand the
case for the Veterans Court to consider its jurisdiction to
address a § 1153 CUE claim in this case. If the Veterans
Court concludes that it lacks jurisdiction over a presump-
tion-of-aggravation CUE claim, that claim remains availa-
ble for Mr. Frick to assert in a separate proceeding. See 38
U.S.C. § 5109A(d); Andre, 301 F.3d at 1362 (“A claimant
. . . may present a novel allegation that the [regional office]
committed CUE ‘at any time,’ irrespective of whether the
Veterans Court has jurisdiction to consider the newly-
raised allegation in the first instance.” (quoting 38 U.S.C.
§ 5109A(d))).
B
The Veterans Court’s rejection of Mr. Frick’s presump-
tion-of-aggravation CUE claim (raised to it on reconsidera-
tion) also raises non-jurisdictional legal issues, which we
briefly address because the issues may arise on remand.
The presumption of soundness (§ 1111) and the presump-
tion aggravation (§ 1153) are distinct, including with re-
gard to who carries particular burdens regarding issues of
in-service aggravation that may arise in applying either
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12 FRICK v. MCDONOUGH

presumption. We have summarized: For § 1111, “[w]hen
no preexisting condition is noted upon entry into service,
the veteran is presumed to have been sound upon entry,”
and the burden falls to the government to rebut the pre-
sumption of soundness, a rebuttal that requires a non-ag-
gravation showing; for § 1153, “if a preexisting disorder is
noted upon entry into service, . . . the burden falls on the
veteran to establish aggravation,” and if the veteran does
so, the presumption of aggravation arises and “the burden
shifts to the government to show a lack of aggravation.”
Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
We have specifically noted the bearing that determinations
on aggravation in one context can have in the other. Id.
The Veterans Court concluded that the Board’s finding
of no aggravation in its § 1111 CUE analysis also supported
a denial of a § 1153 CUE claim. But for that conclusion to
be tested for any legal error, more detailed analysis than is
present in the Veterans Court decision is warranted, tak-
ing more explicit and step-by-step account of, e.g., the pre-
cise aggravation issues, the assignments of burdens of
production or persuasion, the requirements of the CUE
standard, and any difference in VA regulations applicable
in 1961 properly raised and argued. Moreover, in stating
that the absence of express discussion by the Board of a
§ 1153 CUE claim regarding the 1961 rating was “harmless
error” in light of the Board’s rejection of the § 1111 CUE
claim, Frick, 2021 WL 2149678, at *9, the Veterans Court
said that “the same evidence” supporting the § 1111 ruling
“weighs against” a § 1153 ruling for Mr. Frick, id. at *8.
But “weighs against” as a standard does not match the
harmless-error standard, under which prejudice—the op-
posite of harmlessness—“can be shown by demonstrating
that the error . . . affected or could have affected the out-
come.” Slaughter v. McDonough, 29 F.4th 1351, 1355 (Fed.
Cir. 2022) (internal quotation marks omitted) (quoting
Simmons v. Wilkie, 30 Vet. App. 267, 279 (Vet. App. 2018),
aff’d, 964 F.3d 1381 (Fed. Cir. 2020)). Where harmless-
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FRICK v. MCDONOUGH 13

error standards are not met, and facts must be found, the
task is not for the Veterans Court, which may not engage
in “de novo fact-finding.” Tadlock v. McDonough, 5 F.4th
1327, 1333 (Fed. Cir. 2021) (“Congress expressly limited
the Veterans Court's jurisdiction to exclude de novo fact-
finding.”); see also ICC v. Brotherhood of Locomotive Engi-
neers, 482 U.S. 270, 283 (1987) (noting general bar on
courts, in reviewing agency decisions, making determina-
tions of fact or exercising discretion reserved to the agency
within the bounds enforced by judicial review).
On remand, if the Veterans Court concludes that it has
jurisdiction to address a § 1153 CUE claim here, it should
reconsider the claim on the merits, including whether ad-
ditional fact-finding by the Board is needed.
III
For the foregoing reasons, we vacate the Veterans
Court decision insofar as it decided a § 1153 CUE claim, we
otherwise affirm, and we remand for further proceedings
consistent with this opinion.
The parties shall bear their own costs.
AFFIRMED IN PART AND VACATED IN PART,
AND REMANDED