Cormier v. McDonough
21-1170
Fed. Cir.Jun 29, 2021Background
- Arthur P. Cormier, a Navy veteran (active duty 1965–1969) whose ship was anchored at Cam Ranh Bay, Vietnam, invoked the presumption of Agent Orange exposure and filed a VA claim in March 2018 for "leukemia due to Agent Orange."
- In May–Sept 2018, VA and private providers diagnosed him with myelodysplastic syndrome (MDS); VA nurse practitioner Brannon Sims and private Dr. Christopher Snead supported a possible AO nexus; claimant submitted an article (AAMDS) suggesting a veteran link.
- VA obtained an advisory opinion from VA physician Dr. Martin Carroll (Feb 2019) concluding MDS was not more likely than not related to Agent Orange, criticizing the AAMDS article as speculative, and citing epidemiology and age-related spontaneous MDS.
- The Board (June 27, 2019) denied service connection: it concluded the records showed MDS (not leukemia) and that the preponderance of evidence weighed against a nexus; it gave little weight to the claimant’s medical opinions for lack of rationale and found Dr. Carroll’s opinion most probative.
- The Veterans Court affirmed the Board, holding the evidence preponderated against the claim (so the benefit-of-the-doubt rule did not apply) and rejecting the claimant’s duty-to-assist and other challenges; Cormier appealed to the Federal Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of benefit-of-the-doubt rule | Cormier: evidence favors him or is in equipoise, so 38 U.S.C. § 5107(b) should apply | Secretary/Board: record preponderates against claimant, so doubt rule not triggered | Affirmed: Court cannot reweigh facts; Veterans Court correctly found preponderance against claimant |
| Duty to assist / remand for additional evidence | Cormier: VA should have told him more studies were needed and provided other Board decisions or underlying data showing nexus | Secretary: VA took reasonable steps; Board decisions for other veterans are nonprecedential and VA has no obligation to supply such external data | Affirmed: no legal basis requiring VA to provide other decisions' underlying data; duty to assist not violated as a matter of law |
| Competency/presumption of VA examiner credibility | Cormier: challenges presumption of competency of VA examiners (Mathis-based argument) | Secretary: Dr. Carroll’s competency not challenged below; issue waived | Not considered: claimant failed to raise competency before Board; appellate courts will not consider it now |
| Scope of Federal Circuit review | Cormier: asks Court to reexamine factual weight and legal application to facts | Secretary: appeals present factual challenges beyond this Court’s jurisdiction | Court limited to legal questions; cannot review factual determinations or law-as-applied challenges |
Key Cases Cited
- Wanless v. Shinseki, 618 F.3d 1333 (Fed. Cir. 2010) (limits on Federal Circuit jurisdiction over Veterans Court factual determinations)
- Beasley v. Shinseki, 709 F.3d 1154 (Fed. Cir. 2013) (Federal Circuit may review legal questions about VA's duty to assist)
- Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (duty to assist is not boundless)
- Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (claims not covered by presumptive lists require case-by-case direct service-connection analysis)
- Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) (issues not raised before the Board are forfeited on appeal)
- Emenaker v. Peake, 551 F.3d 1332 (Fed. Cir. 2008) (appellate courts ordinarily will not consider issues not raised administratively)
- Mathis v. McDonald, 834 F.3d 1347 (Fed. Cir. 2016) (addressing deference/presumption accorded VA medical examiners)