Alan J. Vogan v. Eric K. Shinseki
24 Vet. App. 159
Vet. App.2010Background
- Vogan, a U.S. Marine Corps veteran, challenged a September 23, 2008 Board decision denying an rating increase for postoperative residuals of gynecomastia.
- He underwent bilateral mastectomy in 1999 and cosmetic scar repairs; service-connected scars were rated 10% (later restored to 10%) and remain at 10% each.
- The Board analyzed only scar-based diagnostic codes and denied ratings beyond 10%, despite his broader symptomatology.
- Vogan argued the RO/Board ignored other potential diagnostic codes and evidence of disfigurement, adhesions, hypopigmentation, discharge, pain, and tenderness.
- He asserted improper post-remand evidentiary handling and inadequate reasons or bases failing to address DC 7626 (breast, surgery of).
- The courtAffirmed the Board, finding no prejudicial error and that DC 7626 would not yield a compensable rating given the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DC 7626 must be considered by the Board | Vogan | Secretary | Not reversible prejudice; DC 7626 noncompensable here |
| Whether the Board failed to consider other DCs besides scars | Vogan | Secretary | Board not arbitrary; other DCs not applicable |
| Whether the Board committed prejudicial error in the scope of review | Vogan | Secretary | Court may review full record for prejudice |
| Whether remand/Joint Motion for Remand (JMR) compliance affected the claim | Vogan | Secretary | No reversible error; JMR did not require further gynecomastia development |
Key Cases Cited
- Butts v. Brown, 5 Vet.App. 532 (1993) (DC selection is reviewed for arbitrariness and discretion)
- Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (prejudicial error and VCAA notice context)
- Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007) (scope to review prejudicial error beyond Board findings)
- Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007) (prejudicial error analysis can use record before the agency)
- Chenery Corp. v. S.E.C., 332 U.S. 194 (1947) (agency grounds control judicial review; new grounds require remand)
- Schrafath v. Derwinski, 1 Vet.App. 589 (1991) (Board decisions must consider all applicable law and regulations)