Hornbeak v. McDonald
673 F. App'x 1002
| Fed. Cir. | 2017Background
- Edward Hornbeak, a World War II veteran, died of lung cancer; his surviving wife, Norma Hornbeak, sought burial benefits based on service connection from exposure to ionizing radiation (proximity to Nagasaki).
- The VA Regional Office and the Board of Veterans’ Appeals denied the claim, finding the preponderance of evidence against a finding that Hornbeak was within ten miles of Nagasaki or otherwise exposed to ionizing radiation in service.
- The Board discredited Mr. Hornbeak’s lay statements about being near Nagasaki, citing inconsistent details over time and no corroborating entry in his service records.
- Mrs. Hornbeak appealed to the Veterans Court arguing (1) the Board clearly erred in finding her husband’s statements not credible and (2) the Board improperly treated absence of service-record evidence as substantive negative evidence.
- The Veterans Court affirmed, concluding the Board did not clearly err in its credibility finding based on inconsistencies and thus need not reach the service-records argument as any error would be harmless.
- The Federal Circuit dismissed Mrs. Hornbeak’s appeal for lack of jurisdiction because the Veterans Court affirmed without relying on the absence-of-records ground and this Court cannot review whether the Veterans Court correctly applied harmless-error analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board clearly erred in finding veteran’s lay statements not credible | Hornbeak: Board erred; statements were credible despite variations | VA: Inconsistencies in statements and lack of corroboration justified disbelief | Veterans Court: No clear error; inconsistencies supported disbelief; affirmed |
| Whether the Board improperly treated absence of service records as substantive negative evidence | Hornbeak: Board treated absence as substantive proof that exposure did not occur (citing AZ v. Shinseki) | VA: Board’s adverse credibility finding stood on other grounds; absence of records was not necessary to decision | Federal Circuit: Did not reach merits — Veterans Court affirmed without relying on absence-of-records; this Court lacks jurisdiction to review that unrelied-upon issue |
| Whether the Federal Circuit can review the Veterans Court’s harmless-error determination | Hornbeak: Veterans Court erred by not addressing the records issue and misapplying harmless-error rule | VA: Veterans Court properly found any error harmless; appellate review not warranted here | Federal Circuit: Lacks jurisdiction to review whether alleged Board errors are harmless as applied; dismissal |
| Whether the Federal Circuit may decide the merits when Veterans Court affirmed without adopting a particular adverse ground | Hornbeak: Requests review of ground the Veterans Court did not adopt | VA: Jurisdictional bar prevents review of unadopted grounds | Federal Circuit: Cannot review issues the Veterans Court explicitly did not rely upon; appeal dismissed |
Key Cases Cited
- Shinseki v. Sanders, 556 U.S. 396 (2009) (harmless-error standard in veterans benefits appeals)
- AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (discussing when absence of records may be treated as evidence)
- Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006) (Court lacks jurisdiction to alter Veterans Court disposition when Veterans Court did not rely on an issue)
- Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004) (Federal Circuit cannot apply section 7261(b)(2) harmless-error rule to facts when record is insufficient)