Waters v. Shinseki

United States Court of Appeals for the Federal Circuit
2009-7071

GEORGE WATERS,

Claimant-Appellant,

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

Sean A. Ravin, Attorney at Law, of Washington, DC, argued for claimant-
appellant.

Scott D. Austin, Senior Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent-appellee. With him on the brief were Tony West, Assistant Attorney
General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of
counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and
Dana Raffaelli, Attorney, Office of the General Counsel, United States Department of
Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Donald L. Ivers
United States Court of Appeals for the Federal Circuit
2009-7071

GEORGE WATERS

Claimant-Appellant,

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in 07-0822, Judge
Donald L. Ivers.
______________________________

DECIDED: April 6, 2010
______________________________

Before NEWMAN, FRIEDMAN, and DYK, Circuit Judges.

FRIEDMAN, Circuit Judge.

The question in this appeal is whether the Department of Veterans Affairs

(“Department”) justifiably refused to give the appellant George Waters a medical

examination to aid it in determining whether his medical disability during military service

had a causal relationship to the different medical disabilities he suffered after his

service. The United States Court of Appeals for Veterans Affairs (“Veterans Court”),

upheld the Department’s action, and we affirm.

While serving on active duty, Waters was diagnosed with paranoid

schizophrenia, which existed prior to his enlistment but was aggravated during his
service, and he was medically discharged in May 1972. In December 1972, the

Department granted service connection and compensation for that condition but, in

1976, the Department found that his condition had sufficiently improved such that he

was no longer entitled to disability payments.

After Waters was diagnosed some years later with hypertension, depression, and

diabetes mellitus, he filed claims with the Department for service connection and

compensation for those conditions. He contended that his diabetes mellitus and

hypertension were secondary to his in-service schizophrenia, alleging that the

antipsychotic drugs administered to him during service caused these conditions; and

that his depression was secondary to his diabetes. He stated that he served in Vietnam

and that his exposure to the herbicide Agent Orange while there caused his diabetes.

The Department, in a regional office’s decision, denied all of Waters’ claims. It

found that there was insufficient evidence to show a connection between schizophrenia

and diabetes or hypertension; and that Waters’ service records indicated that he had

not served in Vietnam and had not been exposed to herbicides during his service. The

Department’s Board of Veterans’ Appeals (“Board”) upheld those rulings, concluding

that “there is no competent medical evidence or record showing a nexus between the

veteran’s military service” and his conditions.

In his appeal to the Veterans Court, Waters primarily contended that the

Department had not adequately assisted him in developing his claims because it had

not provided him with a medical examination. That court held that Waters had not made

a sufficient showing to entitle him to a medical examination. The Veterans Court stated

that “[t]he Board correctly noted that where the determinative issue involves medical

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causation . . . lay assertions of medical status do not constitute medical evidence”

sufficient to require such an examination.

The only issue Waters raises in his appeal to this court is his alleged entitlement

to a physical examination. He contends that the Board and the Veterans Court

misinterpreted the governing statute and applied an incorrect and prejudicial evidentiary

standard in denying his claim.

The government urges us to dismiss this appeal, on the ground that it raises only

factual issues, which we have no jurisdiction to review. Unless an appeal from the

Veterans Court “presents a constitutional issue,” this court “may not review . . . a

challenge to a factual determination, or . . . a challenge to a law or regulation applied to

the facts of a particular case.” 38 U.S.C. § 7292(d)(2). We may, however, review a

decision of the Veterans Court “with respect to the validity of a decision of the [Veterans

Court] on a rule of law or of any statute or regulation . . . or any interpretation thereof . . .

that was relied on by the [Veterans Court] in making the decision.” 38 U.S.C. § 7292(a).

The government argues that the issues Waters raises “involve only the Veterans

Court’s factual determinations and application of law to the facts of this particular case.”

As explained in part III below, however, Waters contends that, in denying him a medical

examination, the Department misinterpreted and misapplied the governing statutory

provisions. That is precisely the kind of legal issue this court has jurisdiction to review.

See, e.g., Willsey v. Peake, 535 F.3d 1368, 1370–73 (Fed. Cir. 2008) (holding that a

case in which the Veterans Court fails to apply the correct legal test presents “a prima

2009-7071 3
facie legal claim and provides grounds for this Court to take jurisdiction over [it].”). We

have jurisdiction over Waters’ appeal with respect to the legal issues he raises.

III

Section 5103A of Title 38 of the United States Code, captioned “DUTY TO

ASSIST,” states: “(1) The Secretary shall make reasonable efforts to assist a claimant

in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under

a law administered by the Secretary.” The statute further provides that in

a claim for disability compensation, the assistance provided
by the Secretary under subsection (a) shall include providing
a medical examination or obtaining a medical opinion when
such an examination or opinion is necessary to make a
decision on the claim.

38 U.S.C. § 5103A(d)(1).

The statute states that the Secretary

Shall treat an examination or opinion as being necessary to
make a decision on a claim for purposes of paragraph (1) if
the evidence of record before the Secretary, taking into
consideration all information and lay or medical evidence
(including statements of the claimant)—

(A) contains competent evidence that the claimant has a current
disability, or persistent or recurrent symptoms of disability;
and

(B) indicates that the disability or symptoms may be associated
with the claimant’s active military, naval, or air service; but

38 U.S.C. § 5103A(d)(2).

These subsections thus provide three guidelines for determining whether a

medical examination or opinion is necessary for the Secretary “to make a decision in a

2009-7071 4
claim.” Subsections A and B address, respectively, the evidence necessary to establish

the veteran’s present disability and its connection to his military service. Subsection C

relates to the evidence the Secretary requires to decide these issues. Such an

examination or opinion is necessary if the evidence before the Secretary contains

“competent evidence” of the “claimant’s disability” (subsection A) and “indicates” that

the disability “may be associated with” the claimant’s active military service (subsection

B), but does not contain “sufficient medical evidence” for the Secretary to make a

decision (subsection C). Since these three subsections of the same statutory provision

contain different evidentiary standards—“competent evidence,” “evidence . . . .

indicat[ing],” and “medical evidence”—it would seem that Congress intended them to

provide for separate, although perhaps related, evidentiary guidelines. See, e.g.,

Russello v. United States, 464 U.S. 16, 23 (1983).

The Board found that there was “no competent evidence of a nexus” between

each of Waters’ current maladies and his active military service. It repeated this

conclusion in almost identical language in its opinion, again stating that “there is no

competent medical evidence or record” showing the necessary nexus. This finding of a

lack of “competent” evidence appears to apply the standard of subsection A above,

which deals with the veteran’s current disability, rather than the apparently less-

demanding standard in subsection B of “evidence” that “indicates” that the veteran’s

disability “may be associated” with the veteran’s active military service.

Waters contends that the Board thus improperly applied the stricter standard of

subsection A in making its nexus determination under subsection B. Waters further

contends that the Veterans Court perpetuated that error when it upheld the Board’s

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finding that “a remand for such [medical] opinions was not required due to the absence

of competent medical evidence showing a nexus between the appellant’s claimed

condition and service or his service-connected disability.”

The Board’s reference to “competent” evidence relating to the nexus between

Waters’ current disabilities and his in-service schizophrenia was unfortunate and ill-

advised. The Board appeared to use the evidentiary standard in subsection A in

applying subsection B and thus subjecting the veteran to a more onerous standard of

proof than the statute provides. See 38 U.S.C. § 5107(b). All the Board needed to

have said was that the record before it did not indicate that Waters’ current disabilities

had a causal connection or were associated with his active military service.

But, however one views the Board’s apparent interpretation and application of

subparagraph B, the Veterans Court found that “[t]he record in the instant case is

devoid of any evidence that the appellant’s diabetes mellitus, hypertension, or

depression were caused or aggravated by his schizophrenia other than the appellant’s

own statements suggesting that such a link exists.” We cannot review this factual

determination. Since Waters has not shown any factual basis for his claim, any

possible error by the Board in using the wrong standard under subsection B could not

have prejudiced Waters.

In making its “determinations . . . the [Veterans] Court shall take due account of

the rule of prejudicial error.” 39 U.S.C. § 7261(b)(2). This provision “requires the

Veterans Court to apply the same kind of ‘harmless-error’ rule that courts ordinarily

apply in civil cases.” Shinseki v. Sanders, 556 U.S. ----, 129 S.Ct. 1696, 1704 (2009);

see also Szemrai v. Principi, 357 F.3d 1370, 1375–76 (Fed. Cir. 2004).

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Before the Veterans Court, Waters had the burden of showing that “an[y] error

[by the Board was] harmful.” Id. He has not done so.

Waters there asserted two grounds to support his claim of a nexus between his

military illness and his present medical problems. First, he stated that he had been

given medication during his service that caused his hypertension.

The Veterans Court stated that the Board found “that there was no competent

medical evidence suggesting a link between any of the claimed disabilities and the

appellant’s service-connected schizophrenia,” and that the “Board also correctly noted

that ‘[w]here the determinative issue involves medical causation . . . lay assertions of

medical status do not constitute competent medical evidence” pursuant to Grottveit v.

Brown, 5 Vet. App. 91, 93 (1993), and Espiritu v. Derwinski, 2 Vet. App. 492, 494

(1992). R. at 3. The court approved the Board’s “express[ ] find[ing] that a remand for

such [medical] opinions was not required due to the absence of competent medical

evidence showing a nexus between the appellant’s claimed condition and service or his

service-connected disability.”

We interpret those statements by the Veterans Court as a ruling that, in the

absence of any medical evidence, Waters’ own conclusory statements regarding

causation were insufficient to establish the necessary nexus between his in-service

schizophrenia and his present ailments. To interpret those statements, as Waters

apparently does, as holding that establishing such a nexus necessarily requires medical

evidence would be inconsistent with Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.

Cir. 2007). There this court rejected as “too broad” the Veterans Court’s “conclusion . . .

that ‘competent medical evidence is required . . . [when] the determinative issue

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involves either medical etiology or a medical diagnosis.’” Id. The Department must

consider lay evidence, but may give it whatever weight it concludes the evidence is

entitled to.

Second, Waters contended that his service records had been falsified to conceal

his service in Vietnam during which he allegedly had been exposed to the herbicide

Agent Orange, which he alleged caused his diabetes. He presented no factual basis for

this claim of falsification. The Board rejected it, based on his service record that did not

show service in Vietnam. It ruled that he had not shown a nexus between his service

schizophrenia and his current diabetes. We have no jurisdiction to review this factual

determination.

At oral argument Waters contended that his conclusory generalized statement

that his service illness caused his present medical problems was enough to entitle him

to a medical examination under the standard of subsection B. Since all veterans could

make such a statement, this theory would eliminate the carefully drafted statutory

standards governing the provision of medical examinations and require the Secretary to

provide such examinations as a matter of course in virtually every veteran’s disability

case. If Congress had intended that requirement, presumably it would have explicitly so

provided. We reject Waters’ theory that medical examinations are to be routinely and

virtually automatically provided to all veterans in disability cases involving nexus issues.

CONCLUSION

The judgment of the Veterans Court dismissing Waters’ action is

AFFIRMED.

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