*1 PADGETT, Appellant, Barney O. Secretary NICHOLSON,
R. James Affairs, Appellee.
of Veterans
No. 02-2259. Appeals Court of
United States Claims.
for Veterans 19, 2005.
April *2 McClain, Counsel;
Tim S. R. General Campbell, Randall Assistant General Counsel; McNamee, Acting Depu- John D. Counsel; ty Assistant General Cristine D. Senseman; Jr., Cassidy, and Edward all V. D.C., Washington, were on plead- ings appellee. for the IVERS, Before Judge, Chief and STEINBERG, GREENE, KASOLD, and HAGEL, Judges.* KASOLD, Judge, filed the HAGEL, Court. Judge, filed an concurring part dissenting part. and IVERS, Judge, dissenting Chief filed a opinion.
KASOLD, Judge: II Barney World War veteran O. Pad- gett appeals through August counsel an (Board) Appeals Board of Veterans’ decision that denied his claim for VA dis ability compensation for service-connected direct, osteoarthritis of the right hip on presumptive, secondary bases. Rec (R.) 9, 2004, at July ord 1-20. In a panel decision of this Court issued after oral argument, the Board’s decision vacat was ed and the matter readjudi- remanded for September cation. On the Court granted parties motions both for a full- Court decision panel and withdrew the de Padgett Principi, cision. 18 Vet.App. (2004) (en order). banc For the rea below, sons stated the Board’s decision will part be reversed in in part, set aside and the matter will be remanded for fur proceedings ther consistent opin with this ion. Barton F. Stichman and James Stew- W. I. FACTS
art (non-attorney practitioner), both of Padgett Mr. served duty on active D.C., Washington, were on pleadings appellant. Army January U.S. July 1943 to * Moorman, Lance, Davis, matter, Schoelen, Judges participate did not in consideration of began regular all of whom appeal. Operating active service on See Court's Internal V(b)(1)(C). the Court after full-Court deliberations on this Procedures treatment records from Dr. who served obtained is a combat veteran 1945. He Shaw, Africa, Padgett’s private the Middle East. R. Charles H. Europe, records, injured he Dr. orthopedic surgeon. In March those at 22-23. on ice in that in slipping a result of Shaw noted was left knee as *3 July R. at In Plattsburgh, “morbidly degen- New York. 43. obese” and suffered from 1944, during neck, knee in reinjured spine, his left erative arthritis he 1988, In jumped he into a ditch seek- knees. R. at 226. Dr. Shaw combat when 54, x-rays fire. R. at 71. wrote that taken after an ing cover shell October indicate that accident inter depicted, His service medical records 1988 automobile alia, having sprained degenerative a of the diagnosed he was severe arthritis chronic, severe, knee, synovitis changes in left knee with lesser left chronic, severe, knee, secondary degenerative knee and severe arthritis of the left 1945, In a sprain. August right hip changes Id. with lesser in the left the left-knee (RO) him hip. Padgett office awarded ser- R. at 230. Mr. underwent a regional VA arthroplasty of a left-knee at right-total-hip connection for residuals 1989. R. vice 1991, R. at Dr. injury, disabling. rated at 30% 92. 233-37. In Shaw also recom- R. R. rating arthroplasty. was reduced later to 10%. mended a left-total-knee That at 237. at 149. Padgett May
In Mr. filed In the RO found that there September right-hip connection for ar- condi- seeking claims service was no evidence his leg, hip, by left left dis- pain thritis-related his tion had been caused his left-knee R. at 149. R. ability Padgett’s and the left side of his back. and denied Mr. claim. decision, assigned the RO a Padgett appealed In a June 1976 at 242. Mr. to the rating for traumatic arthritis of his 260. In of his support 30% Board. R. at sprain following left knee and for a residual addi- appeal, he submitted ankylosis. R. at private left knee with favorable tional medical statements from his service connection physicians indicating degenerative 185. The RO denied lumbar-spine and further in his experiencing for a disorder disease that he was inju- that the did not indi- right hip determined evidence was related to his left-knee letter, left-hip a current Dr. ry. cate the existence of In a December 1993 Shaw Padgett ap- R. at Mr. disorder. 185-87. stated: Board, claiming that all his
pealed to the historically an in- Padgett Mr. sustained arthritis had been caused his service- jury [s]er- to his left knee while 189-92, injury. left-knee R. at connected injury has resulted in severe vice. This decision, April 201. In an his endstage traumatic osteoarthritis of arthritis, multiple-joint that his oth- found knee. He also states that he thinks he knee, er than that of his left was not injury a result hip sustained an to his service, aggravated by incurred while years incident. of that same Over service, or caused an in-service disease increas- developed progressively he has injury, appeal. and the Board denied his his left ing degenerative disease of both R. at 211-15. right hip. knee and my feeling gait a claim It is that the abnormali-
In March filed severity of the ties associated with the right-hip for service connection for dis- involving ha[ve] his left knee order on the basis that the need for disease adversely impacted progression right-hip replacement was caused his right hip degenerative disease of his disability. left-knee R. at 218. The RO injured right hip oath that he had his aggravated symp- in fact his der and have while in at the time that he my service same feeling it. It is toms with reinjured R. at had his left knee experi- that he has degenerative disease January 296-97. after right hip is related enced in his provide that the did not a suffi- injury. original cient basis for service connection on either R. at 262. basis, secondary again a direct or RO letter, Dr. January In a Robert denied Mr. claim R. at 303-04. Thoburn, specialist in internal private Padgett appealed January rheumatology, stated: medicine and (R. 319) RO decision to the Board injury to the left Padgett] had [Mr. *4 additional statements from Dr. submitted pro- in the This has knee while service. 340). (R. 325, Dr. Thoburn and Shaw gressed to severe osteoarthritis of letter, Dr. In a November 1995 Thoburn secondary to trauma. He left knee opined: my feeling “It is that a shift in injury an to the thinks he sustained plus weight gait] of his altered [because right hip progressive pain and has and obesity his size and contributed to acceler- right hip. stiffness of right hip,” ated osteoarthritis of his there- endstage He has an left knee has by leading right-hip replacement. to a total shifting in to the weight resulted statement, R. at In an 325. October likely It is that this has resulted side. Dr. opined Padgett’s irreg- Shaw that Mr. progression of osteoarthritis of the gait pattern resulting ular from his left- It is consistent that the os- right hip. injury symptoms knee increased his right hip of the and left knee teoarthritis ultimately right hip, required right- which original injury. are related to the hip replacement. R. at 340. Dr. Shaw R. at 261. Padgett’s] concluded that war-relat- “[Mr. injury directly aggravated symp- ed his also an Padgett
Mr. submitted October respect hip.” toms with to his Id. Rawls, from Dr. James A. 1993 letter Dr. that he had treat- which Rawls stated April In the Board remanded the Padgett years ed Mr. for almost 30 (1) adjudicate case to the RO to Mr. Pad- major problem that “a noted most this gett’s compensation claim for based involving time has been osteoarthritis (2) connection, direct service reconsider his knees, joints, weight-bearing hips, and low claim for on a compensation based second- Padgett back.” R. at 263. Mr. also sub- ary basis as a result of the decision Court’s mitted a 1979 letter from Dr. Rawls June in Allen v. Padgett’s pain,
that noted Mr. left-knee (en banc) (holding may that veteran specifically Dr. Rawls did not comment but compensation aggravation awarded Padgett’s gait right-hip on Mr. disabili- non-service-connected condition service- ty. R. at 265-67. In March after disability), connected afford him a evidence, reviewing newly submitted hearing traveling a section of the before deny the RO continued to the claim. R. at R. at Board. 354-57.
272-74. Padgett In June Mr. underwent a May Padgett
In Mr. a Dr. F. R. filed Notice VA examination Henderson. Disagreement respect to the March at 360-63. Dr. Henderson concluded that and, Padgett multijoint 1994 RO decision from “de- December Mr. suffered hearing generative joint he was afforded a before the RO. disease” that was “a con- At hearing, Padgett sequence aging process” testified un- of the rather than contrast, In R. at 16. nature.” [in] at 363. How- injury. Id. specific any one opin- that “both of VA [the Board stated left- Padgett’s that Mr. ever, he also stated probative value as have tremendous ions] part may “played have injury knee review of thorough based on a both were a left-knee re- required later damage that file, for- which is essential [to] the claims necessarily hip re- but placement, The Board mulating opinion.” a sound Id. addition, Dr. Id. placement.” of record that the medical evidence found not reviewed that he had noted Henderson an in- indicate a nexus between did not orthope- and that a certified claims file injury Padgett’s right hip to Mr. service a more the case “for review dist should disability or that right-hip his current R. at 363. opinion.” definitive disability manifested within right-hip his hearing, Board February During discharge, and thus year one after his under oath again testified connection on direct denied service at the injured right hip that he had R. at 14-17. The presumptive bases. knee in reinjured his left time he had same claim for also denied Mr. Board July In a R. at 393-410. connection, after secondary service med- letter, requested injury was not Padgett’s right-hip that Mr. the chief of staff ical *5 left-knee to his service-connected related Carolina, Columbia, Medical VA South disability. R. at 17-18. (VAMC). As its R. 413-15. Center Padgett argues, inter appeal, Mr. On opinion, the the requesting authority for (1) alia, relying that the Board erred Health Ad- cites Veterans Board’s letter ren medical the June VA (April Directive 10-95-040 ministration Dr. Henderson because he did dered (1999), and 38 1995), 20.901 38 C.F.R. file, Padgett’s claims did not review Mr. Dr. K. R. at 413. John 7109. medical evidence positive discuss the Blincow, tasked employee, was VA file, not consider the claims and did the to review of the VAMC the Chief of Staff injured his Padgett that Mr. had fact provide claims file and Padgett’s Mr. (Br.) at Brief hip (Appellant’s in combat advisory medical requested Board the the (2) 17-18); did not have the the Board After examin- R. at 413-20. opinion. See then-existing regula the authority under file, Dr. Blincow claims ing Padgett’s Mr. 20.901, tion, to secure the C.F.R. (1) Padgett’s right-hip that Mr. concluded Blincow, Dr. opinion of expert medical VA degen- by age-related was caused disorder had the if the Board and even not related to his arthritis and was erative under opinion, such an obtain injury gait or a abnor- left-knee in-service 38, U.S.Code, 7104(a), and Disabled title (2) disability did his left-knee mality Secretary Veter American Veterans an increase in se- or cause aggravate (Fed.Cir.2003) F.3d 1339 Affairs, ans arthritis. R. at 418- right-hip verity of his the Board Sec’y], DAV [hereinafter that without not consider could agency the Board issued the the remanding the matter to August On first Mr. obtaining 1-19. In its jurisdiction R. at appeal. original decision on Br. at 20- medi- decision, (Appellant’s accorded VA waiver Mr. Pad- 24); Board’s that weight opinions than the opinions cal more not related condition is Padgett’s private physi- gett’s right-hip by Mr. rendered injury or his service-connect that an in-service The Board found R. at 14-18. cians. disability clearly erroneous ed left-knee private physicians were medical private because unsubstantiated “equivocal apparently required re- provide etiological Response Sec’y Sur-Reply record Br. at 2-6. lationship decision, for service connection to be In his motion for a full-Court 15-16); 7109(a) (Appellant’s awarded Br. at and Secretary argues that section ais 7104(a) properly the Board could not exception because clear to section and that opinions, rely on either VA the United Appeals States Court of for the (Federal Circuit) properly before Federal Circuit found in exists, are Sec’y the Board or Court those DAV v. exception Padgett’s claim support thereby precluding Mr. and therefore this Court from hold- (Mot.) should reverse the Board’s deci- ing Sec’y Court otherwise. Motion at 3. denying (Appellant’s claim Br. at Padgett argues sion Mr. in his cross-motion for 25). alternative, Padgett ar- Mr. a full-Court decision that the Court has gues the Court should remand the full authority to review the Board’s factual case for the Board to correct findings the errors for clear Appellant’s error. Mot. compliance that he identified and to ensure at 3.
with the notice and require- assistance 5103A, ments sections title II. ANALYSIS Appellant’s Br. U.S.Code. at 26 n. 2. Padgett raises two issues concern- Secretary filed an initial brief ing the Board’s consideration of Dr. Biin- remand, argued primarily which he for a First, opinion. cow’s 1999 failure comply based on his with notice argues he that the Board failed to follow 5103(a). Secretary’s duties under section applicable regulatory procedures in obtain- However, (Sec’y)Br. at 7-13. ing this opinion, thereby rendering “waive[d] Court’s consideration [of] Second, its use invalid. argues he *6 relating duty the errors to the ... if even the Board statutory had the notify in ... Secretary’s discussed regulatory authority to “secure” the opin- Appellant’s Reply brief.” Br. at 1-2. The ion, it did not statutory authority have the Secretary, Court, with leave of the then instance, to “consider” it in the first absent sur-reply filed a brief order to address Padgett. waiver from Mr. We will ad- arguments. Mr. other Although dress each of these contentions in turn. Secretary agrees with Mr. Padgett Regulatory Authority A. to Secure and that the Board in relying erred on the 1997 Expert Consider 1999 Medical opinion VA medical of Dr. Henderson Opinion of Dr. Blincow 10), (Sec’y Br. at Secretary argues that authority had the under section rendering decision, Before its 7109(a) (2002) § 20.901 to obtain the requested Board an expert opinion medical Blincow, opinion 1999 VA medical of Dr. from the Chief of Staff of the VAMC and that pursuant obtained there- Columbia, South Carolina. Mr. Padgett require to do not remand to the RO for argues that the Board lacked authority initial consideration (Sec’y Sur-Reply Br. under the law effect at the time to ask 3-7). provide Chief of Staff to a medical Padgett’s response opinion the Secre- regulations because the provided brief, tary’s alia, sur-reply argues, he inter an opinion such could be solicited (also that Dr. Biincow’s opinion medical did not from VA’s Chief Medical Director 7104(a) fit any exception under to section Secretary Health), known as the Under that would allow the initially Board any and made no reference to per other consider son, additional evidence. Appellant’s including a Chief of Staff of a VAMC. 20; expert employ- medical from VA Br. at see also 38 Appellant’s See 20.901(a). thereby statutory author- provided ees and § C.F.R. ity also find that the practice. We opin- obtaining expert After authority of the Board to secure medical of the Board during pendency ion but authority for the opinion includes decision, Secretary amended opinion. consider 20.901(a) to ob- authorize the Board May Expert 1. Board Secure any appropri- opinion a medical tain Opinions Medical VA, within professional ate health-care Medical Director. See just the Chief outset, At the we note that From Opinions Practice: Medical Rules of already has addressed on several Court Administration, 66 Health the Veterans opin occasions the Board’s use of medical 23, 2001); 38,158, 38,159 (July Fed.Reg. obtained, concluded, it either di ions 20.901(a) (1999) compare 38 C.F.R. rectly that the Board had the implicitly, or 20.901(a) (2002). Given this C.F.R. expert opinions to secure regulation, the Court modification of the employees. from both VA and non-VA Padgett that Mr. cannot and does not find See, West, e.g., Vet.App. Winsett v. Board’s solicitation prejudiced by the was (1998) (holding that section of Dr. Blincow’s preclude obtaining does not Board from regu- the Board had clear opinion because not rendered from out latory authority to take such action Brown, VA); Perry side opinion Dr. Blincow’s consider that, (stating in event that medical- it ultimately upon relied and ren- when remand, was needed on nexus appeal. the decision here on See dered may develop “Board seek to obtain that 7261(b)(2) (Court shall take due through ment itself or non-VA a[VA] [med error). prejudicial account of rule of expert] opinion”); ical Thurber v. Statutory Authority to Secure and (commenting 120-21 B. assumes, although does Expert Opinion Medical that section 7109 Consider authorize, specifically Board’s obtain that, if argues also even experts, and ing opinions of VA medical Dr. Blincow’s obtaining securing *7 20.901(a) § autho holding that 38 C.F.R. by regulation, the Board permissible was promulgation action is a valid rizing such rely upon Dr. Blincow’s medical could statutory sections 7109 and pursuant instance, in the first absent U.S.A., 5107(a)); Inc. v. also Chevron see waiver, deny it claimant’s because would Inc., Council, 467 Natural U.S. Res. Def. “one review on Padgett 2778, 837, 843-45, 104 L.Ed.2d 694 S.Ct. 81 Secretary” provided as to the appeal (1984) (Court to executive gives deference 7104(a); § also v. by 38 U.S.C. DAV regulation making reason department’s Although focus- Sec’y, supra. scheme). statutory interpretation able authority the Board’s lack there- es on —or light subsequent issuance in “consider” Dr. Blincow’s of—-to Sec’y, v. opinion in DAV Federal Circuit’s instance, that we the first it is essential however, to examine we feel constrained statutory first examine to do proceed and thus question anew opinion. For the Board to “secure” the so. below, we conclude that reasons set forth Sec’y, the Federal Circuit In DAV v. the United States Con- authorizing the regulation held that a statutorily recognized and sanc- gress evidence with- Board obtain additional the Board to secure practice tioned the 140 one-appellate-review require- tion to the an RO for initial consider-
out remand
violated the statuto-
7104(a),
that evidence
Congress
ation of
ment of section
and that
7104(a) that
in section
ry requirement
agree.
did so in section 7109. We
review of the Secre-
appellate
there be one
starting point
interpreting
“The
a
Sec’y,
See DAV
327
tary’s decisions.
‘if
intent of
language,
statute is its
C.F.R,
(invalidating 38
at 1353
F.3d
clear,
Congress is
is the end of the
19.9(a)(2)(2000)). Although the Federal
”
1456,
5
matter.’ Gardner
F.3d
7104(a) gen-
that section
concluded
Circuit
(Fed.Cir.1993)
1456
Gardner
[hereinafter
from consider-
Board
erally precluded
552,
II],
115,
aff'd, 513
115
130
U.S.
S.Ct.
instance,
ab-
the first
ing new evidence
(1994).
claimant,
“Determining a
by the
that court L.Ed.2d 462
stat
sent waiver
Congress
make ex-
recognized that
could
plain meaning requires examining
ute’s
that Congress
and further noted
ceptions,
specific language at issue and the overall
regard
to ex-
explicitly
had
done so
v. Der
structure of the statute.” Gardner
opinions
at least two statu-
pert medical
winski,
586
[herein
implemented by regula-
tory provisions
I],
nom.
after Gardner
sub
Gardner
aff'd
the Federal Circuit
Specifically,
tion.
II,
(Fed.Cir.1993), aff'd,
Moreover, any considering extent that there is to the doubt, mandate the Chief history ping of section Medical legislative Board, thereby leaving and the recognition Director demonstrates that this independent experts “the using VA medi use practice Board’s than permissive with Board rather experts in addition to outside medical cal required by mandatory as would have been a deliberate action Con experts was SEC, Repre- House of passed the bill as See 450 U.S. gress. Steadman (1962), Rep. No. 87-1844 sentatives.” S. S.Ct. L.Ed.2d (Court history may legislative reprinted U.S.C.C.A.N. look intent). noting explained It its that the principal action Congress’ reveal eventually made “no reference reporting be bill was the section that purpose Appeals securing provide was to Veterans’ came section 7109 advisory opinion from the Chief Medical authority an advi Board with the to secure Administration independent Director of Veterans’ sory Agency a matter within experts employees since this is who were not ample 87-671, No. 76 Stat. 557 discretion of VA. See Pub.L. *9 practice (emphasis add-
(1962); now exists.” Id. (redesig 4009 (2d Sess.), 12-40, ed); Cong. H.R. by 7109 Pub.L. No. 87th nated section (1991)). 402(b)(1), § 1 (amending proposed section Stat. The bill) 1962). Aug. 6, House-passed (reported House-passed version of the bill would version of the bill authorizing may Senate “consider” opinions those the first expert opinions instance, the Board seek medical his interpretation of the statute “in addition to that available within the to mean that precluded the Board is from Department,” was concurred in considering so them is inconsistent with Representatives, House of United States analysis Sec’y, supra, DAV v. as well 1962), Cong. (Sept. Rec. 18406 Thurber, as the discussion in Perry and By adding enacted. thereafter was this supra. Padgett’s both interpretation language, mandatory instead the House is also inconsistent with statutory language, Congress recognized ap- legislative scheme and the purpose behind proved continuing authority section produce 7109 and it would absurd opinions Board to seek medical results. experts employed by from medical VA in a. Sec’y, DAV v. Perry, and Thurber: newly granted authority addition to the v. Sec’y, DAV the Federal Circuit stat experts secure such from medical Congress ed: “[W]hen intended to author recognition outside This VA. is demon- ize the Board to obtain additional evidence strated the Explanatory Statement on without ‘one review on to the Secre A, Compromise Agreement on Division ac- tary,’ it knew how to do so.” 327 F.3d companying the enactment of the Veterans 1347-48. If the Federal Circuit was ad Act, 100-687, Judicial Review Pub.L. (or dressing only the obtaining securing) of 103(a)(1), (1988), which, 102 Stat. 4105 sense, evidence in its narrowest as Mr. alia, inter modified then-section 4009 and Padgett would have us construe those stated Committees ... “[t]he note terms, then there would have been no need approval practice the current of ob- for the Federal Circuit to note that Con taining [expert opinions” medical] gress knew how to authorize the Board to (1988), within Cong. VA. 134 Rec. S16653 obtain such evidence “without ‘one review reprinted in 1988 U.S.C.C.A.N. ” on appeal to the Secretary’ because the Thus, provides we hold that section 7109 obtaining mere the Board statutory authority for the Board to secure (without review) could not violate the one- from both VA and other appellate-review requirement of section experts. 7104(a); only the Board’s consideration of We now address Mr. argu- possibly such evidence could do so. We plain ment wording of section view the Federal Circuit’s conclusion in 7109(a) authorizes the Board to se- respect this as integral analysis to its cure, instance, not to consider in the first 7104(a) and therefore not dictum. an expert opinion, and that this generally Raritan, See Co-Steel Inc. v. required means that the Board is to return Comm’n, Int’l Trade 357 F.3d 1307- a case to the RO for initial consideration of (Fed.Cir.2004) (defining dictum as lan any expert medical the Board guage that unnecessary to decision in might secure. For the reasons stated be- case) (citing Black’s Law Dictionary low, reject we interpretation. (7th ed.1999)); see also DaimlerChrysler
2. Board Initially May Expert Consider States, Corp. v. United 361 F.3d Medical Opinions It Secures (Fed.Cir.2004) n. that, (noting even if Although Mr. Padgett correctly dictum, *10 (same); together (Fed.Cir.2001) statute must be construed with- Stone Con- States, according importance single F.3d out undue to v. Corp. United
tainer (same). Moreover, (Fed.Cir.2000) portion). or a “statute isolated 1349-50 given that effect Moreover, Sec’y, should be construed so consistent with DAV provisions, part that no the to all its so will implicitly recognized has this Court void inoperative superfluous, insignif- or or of the Board’s consideration propriety icant, Perry, 9 and so that one section will opinions it obtains. See medical destroy provision another the is the that on the unless (stating at 6 remand or through a ease result of obvious mistake error.” Suth- develop could itself Board 46:06; Splane, § supra. see also expert opinion); a VA medical erland, use of Thurber, (noting at statutory pertinent to our scheme to opportunity a claimant and notice to in this includes au- separate review case before could required were Board respond Secretary the thorities for obtain medi- expert opinion that it rely on a VA medical opinions cal the RO level. See 38 obtained). 5103A(d), §§ 5109. medical Those Sec’y language if the DAV v. Even RO, are an first considered us, the upon based on binding was not appealed whose decisions can be following analysis agree we with the Fed- 7104(a), §§ 7105. Board. See 38 U.S.C. conclusion as section eral Circuit’s gives separate Section Board independent authority to advi- Statutory Although the and secure
b.
Scheme:
when,
sory
judg-
autho
“in the
language of the statute —here
plain
Board, expert
opinion,
rizing
the Board to “secure” an
ment
in addition to that available within the
opinion from both VA and non-VA
the medical
experts
starting point
Department,
warranted
—is
II,
statute,
controversy
or
involved in an
analysis
complexity
of that
see
Gardner
7109(a).
I,
case”.
Con-
supra,
and
all
it is not
38 U.S.C.
Splane,
Gardner
concert,
these
totality
analysis.
interpreting
sidering
provisions
When
statute,
it would have
meaning
concludes that
been
part
of a
“each
Court
Congress
given
to have
incongruous
of a statute should be
construed.in
discretionary authority to
Board to
every
part
with
other
or section
connection
initial
require
a medical
but
produce
as to
a harmonious whole”
obtain
so
RO,
which
interpretation
confine
review of
proper
“it is not
already
opportunity
2A N.
had an
to seek
to be construed.”
to the one section
Statutory
obtained under its
review medical
Singer,
Con
Sutherland
on
(6th ed.2000)
authority in
separate
46:05
own
[hereinaf
struction
Sec’y,
not a
is,
this is
That
court will
5109. Unlike DAV
ter
“the
Sutherland],
involving
authority
particular
regulatory
case
only consider the
statute
that conflicts
to consider evidence
legislative
but also the entire
Board
question,
one
statutory right
review
part.”
of which it is a
Sutherland,
scheme
Rather,
here
46:05;
issue
King
appeal.
v. St. Vincent’s
also
570, 116
Re-
215, 221, 112
statutory
scheme itself.
U.S.
involves
Hosp., 502
S.Ct.
(when
to send information
interpreting
quiring
L.Ed.2d
statute,
statutorily
to secure back
permitted
to look at context
it is
required
court is
whole);
is inconsis-
the RO for initial consideration
of law as
Imazio
provisions
statutory
Greenhouses,
69 tent with the overall
scheme
Nursery,
Inc. v. Dania
(described
(all
(Fed.Cir.1995)
below
Congress
the intent of
parts
F.3d
*11
II.B.1.c)
i.e.,
part
that the Board resolve
gett,
con
remanding to the RO for initial
expert
flicts in evidence.
consideration of
medical opinions
requested and
by
pur-
obtained
the Board
Congress
Our conclusion
intended
7109(a),
suant to section
nothing
does
expert
to consider the
opin-
improve the
appellate proce-
referenced
that it
under section
ions
obtained
difficult,
dures. We believe that it is
if not
by the fact that
supported
is further
Con-
impossible,
escape
the conclusion that
gress
provided due-process protec-
also
Congress, by specifically referencing ap-
(c)
tions. Subsection
of section 7109 re-
pellate procedures
by
vesting
quires the Board to furnish notice and a
(VA’s appellate body)
copy
opinion
to the claimant. See
procure
expert
opinions,
such
medical
(“subsection
Winsett,
rights”); 38 C.F.R. reversal of the Board seeks hearing citing 38 right and notice of argument that the 501(a) decision based on his statutory authority for § U.S.C. as 3.105(i) (affording op- properly rely could not on either claimant Board right); this of portunity hearing prior opinion, leaving for severance the of VA medical connection, in compensa- reduction service and as the medi- Drs. Shaw Thoburn reductions and pension, and other tion or Board. opinions properly cal before the discontinuances) (2004)). This mean would rejects Although the Court the contention longer Board no assess that the could the the Board could not consider VA that the credibility the the first instance nev- any purpose, for we claimant, a well- hearing testimony of appropriate find reversal ertheless role Board. recognized See Cuevas secondary-ser- denial of Mr. Principi, Vet.App. v. claim. right-hip-disability vice-connected required that is to “address (noting Board with Additionally, appropriate remand is credibility testi- appellant’s sworn presumptive to his claims for regard for mony provide discounting or reasons right-hip for his direct service connection Derwinski, 2 testimony”); v. Wilson disability. (1991) (same); 16, 20 Smith Secondary as to A. Board Decision Derwinski, 1 Vet.App. 237-38 Right-Hip for Connection Service (“[djetermination credibility func- is a Disability will be Reversed [Board]”). Pad- Because Mr. tion for gett’s interpretation would lead to Secondary may connection be service results, it avoided. absurd should be above disability proxi granted any is of a Summary mately
S.
due to
service-
or
result
injury.
38 C.F.R.
connected disease
summary,
In
we conclude
3.310(a)
Allen,
(2004);
7109(a) gives
author
section
(allowing secondary service connection
ity to secure
of non-service-connected
aggravation
experts,
both VA
non-VA
disability).
by service-connected
condition
authority
includes
that such
finding
regarding
Board’s decision
infor
to consider
the first instance the
finding
secondary service connection is
conflict
mation so obtained and does not
under the
that the Court reviews
of fact
appel
the section
one
with
set
“clearly erroneous” standard
review
review,
particularly given the fact
late
7261(a)(4).
Hard
in 38
See
forth
protections
provided
are
due-process
(1993).
Brown, Vet.App.
er v.
regulation,
the statute
38 U.S.C.
7261(a)(4) directs
20.903(a).
regard,
7109(a);
In
This
38 C.F.R.
any
Thurber,
or set
to “reverse
aside”
conclusion,
effect,
the Court
reaffirms
fact
“finding of material
adverse
Sec’y,
is
supra, and
consistent
DAV
(Fed.Cir.2001) (“benefit
finding
if
clearly
claimant ...
erro- F.3d
“
7261(a)(4).
may
‘A
the doubt rule
shifting
viewed as
neous.”
although
nonpersuasion’
the ‘risk of
when
there
onto the VA to
‘clearly
erroneous’
it,
prove that the veteran is not entitled to
support
reviewing
is evidence to
benefits”).
application,
this rule creates
left with
court on the entire evidence is
a preponderance-against-the-claim eviden-
firm
that a
the definite and
conviction
*13
”
tiary
applies
every
standard that
finding
committed.’
mistake has been
Gilbert
Mariano, Robinette,
of material fact. See
Derwinski,
49,
Vet.App.
1
52
Gilbert,
and
all supra. The Court cannot
added)
(emphasis
(quoting United States v.
7261(b)
carry
responsibility
out its section
Co.,
364, 395,
Gypsum
U.S.
333 U.S.
68
to “review the record of proceedings be
(1948)).
525,
course,
S.Ct.
inferentially to
rule as
benefit-of-therdoubt
benefit-of-the-doubt rule under the “clear
standard”);
“equipoise
38 C.F.R.
3.102 ly erroneous” standard of review set forth
(2004).
way,
Put another
under the bene
7261(a)(4),
in 38 U.S.C.
and then pro
rule,
fit-of-the-doubt
“the preponderance
apply
ceeded to
that standard of review.
against
evidence must be
the claim Mariano,
supra
(quoting Roberson v.
Gilbert,
for benefits to be denied.”
1 Vet.
(2003)).
Principi,
17 Vet.App.
“
54;
App. at
see Robinette v.
8 Accordingly, if the Court has
‘the definite
(“the
unique eviden- and firm conviction that a mistake has
”
tiary
adjudication sys
burdens
the VA
been committed’
finding
the Board in
... permit
tem
merits disallowance
preponderated against
preponderates
where the evidence
against
fact,
claim
finding
on a
of material
claim”);
7261(a)(4)
see also
Principi,
Ortiz v.
274 then
section
section
“un-
7261(b)(1)
claimant’s evidence was—it was
finding
such
require that
This
clearly
and be reversed
controverted”.
characterization
erroneous
held
Gilbert,
supra (quoting
Hersey
presented
U.S.
was not
the evidence
set aside.
Co.,
“clearly
(reversing lower
or different criterion for
supra
as a new
Gypsum
Hicks,
“clearly erro
supra;
of fact under
Court’s
erroneous” review. See
review));
see also Vet
47-
Principi,
neous” standard of
also Wells
(VBA),
order)
(en
J.,
Pub.L.
(Steinberg,
Benefits Act of
erans
banc
dissent
107-330,
decision) (ana
116 Stat.
No.
to denial of full-Court
ing
7261(b)(1)
revising
(enacting section
Hersey
Hicks
relation to
lyzing
Mariano,
(not
7261(a)(4));
supra
Gilbert);
Anderson,
Co.,
Gypsum
U.S.
of review
ing “clearly erroneous” standard
(Kasold, J.,
deni
dissenting
at 49-51
id.
of “outcome of
decision) (same).
to assessment
applies
al
full-Court
of benefit-of-doubt
application”
Board’s
*14
Co.,
Gypsum
Mari
It is clear
U.S.
rule,
application of
holding
thrice
Board’s
ano, and Gilbert that the existence of some
5107(b)
erroneous,
clearly
section
(that
is,
controverting evidence
evidence
reversing
setting
once
it
it and
twice
favor)
appellant’s
that is not
the
does
(not
Roberson,
aside);
Vet.App. at 147
17
preclude
carrying
this Court from
out
change
“clearly
stan
ing no
erroneous”
7261(a)(4) and
mandates in section
review).
Wells v. Princi
dard of
But see
(b)(1)
of proceedings
to “review the record
(2004) (en
33,
Vet.App.
banc
pi, 18
39
Secretary and the
before the
Board”
order)
J.,
(Steinberg,
dissenting to denial
“take
account of
then to
due
the Secre
decision) (opining
that VBA
full-Court
5107(b)”
tary’s application of
[the]
major expansion of the
brought “about a
(i.e.,
rule
prepon
“the
benefit-of-the-doubt
as to
responsibilities
Court’s
review
against
of the evidence must be
derance
factfinding”).
BVA
denied,”
claim for
to be
Gil
benefits
7261(b)(1),
bert,
supra), 38 U.S.C.
argues
Secretary
The
decisionmaking as to
governs the Board’s
clearly
Court cannot
erroneous
hold
fact,
“set
every finding of material
and to
finding
the evidence is un-
Board
unless
application
or reverse” that
when
aside
against
finding;
controverted
Board’s
erroneous,”
“clearly
is
38
Secretary
specifically,
states:
7261(a)(4). Mariano,
17
at
Vet.App.
See
Reversal
warranted
Court
(twice holding
findings
Board’s
313-17
absolutely
plausi-
when there is
no
clearly
though
erroneous even
evidence
ble basis
decision
[Board’s]
uncontroverted);
also U.S.
was not
clearly
decision is
[Board’s]
where
Co.,
395-96,
68 S.Ct.
Gypsum
333 U.S.
of the uncontroverted
light
erroneous
clearly
(finding
finding
court’s
lower
a]ppellant’s
favor.
evidence
[the
uncon-
where evidence was not
erroneous
Brown,
Hicks
troverted).
To the extent that Hicks
(1995).
regarding
The
evidence
relying
Hersey
can
precedent
other
aggravation in this case is con-
nexus or
support
proposition
read
troverted,
is not appropriate.
so reversal
clearly erroneous
cannot be
language
Sec’y Sur-Reply at 3.
Hicks
finding is
against that
unless the evidence
for not
Secretary
cited
uncontroverted,
precedent
is over
unless the
finding clear error
unanimously.
ruled
Hersey
uncontroverted was derived from
Derwinski,
(1992),
decision
reviewing
Board’s
connection
strong
deny secondary service
it was
to describe how
where
used
disability in
right-hip
light
ry,
of the entire
including direct observation of the al
case,
we
gait,
record
note that there are
teration of his
are the
of Drs.
Blincow,
Henderson and
knowledge
two doctors with intimate
the VA
doctors.
but,
Dr. Henderson examined Mr.
Padgett
Padgett
and his medical status who
contrary to what the Board stated in its
opine
injury “directly
that his left-knee
decision, he did not review the claims file.
“adversely
aggravated,”
impacted,” or oth-
(Dr.
R. at
report
Henderson’s
stat
to”
erwise “contributed
or “resulted in” his
review”).
ing, “C file was not available for
261-62, 325,
R. at
right-hip problems.
Dr.
report
Henderson’s
also made no men
Thoburn,
rheumatologist,
Dr.
was aware
Padgett’s
tion of Mr.
right-hip
in-service
of Mr.
knee condition since at
injury. R. at 360-63. These factors ren
Dr.
least
when
Thoburn was consult-
der Dr.
report
“questiona
Henderson’s
ed
another doctor who believed that
Mariano,
probative
ble
value.”
17 Vet.
Padgett
degenerative
had severe
ar-
(flawed
App. at
methodology
in creat
a possible
thritis and
torn medial meniscus
ing medical
report
report
renders
of the left
R. at
knee.
162. In
Dr.
“questionable
value”);
probative
Bielby v.
for,
Thoburn treated Mr.
inter
(1994) (“In
7 Vet.App.
alia, degenerative arthritis of the left knee.
order
expert’s
for an
opinion to be based
Shaw,
R. at 189-91. Dr.
an orthopaedic
upon
case,
the facts or data of a
those facts
surgeon, began treating Mr. Padgett
*15
in
or data must
perceived
be disclosed to or
1982, performed his right-total-hip arthro-
expert pñor
rendering
opin
1989,
in
plasty
and evaluated his medical
ion!;]
opinion merely
otherwise the
is
con
in follow-up
condition
medical evaluations
jecture and of no assistance to the trier of
through 1991. R. at 226-37. Dr. Shaw
fact.”) (emphasis in original); Grreen v.
provided copies
periodic
of his
evaluations
Derwinski,
(1991)
1 Vet.App.
throughout
to Dr. Thoburn
his treatment
(duty
requires
to assist
providing claimant
of
R.
Padgett.
at 226-37.
“thorough
with
contemporaneous”
The Board noted Dr.
opinion
Shaw’s
medical examination that “takes into ac
Padgett’s
that Mr.
“in service left knee
count the
prior
records of
medical treat
injury resulted in severe traumatic os- ment”);
(2004) (“It
38 C.F.R.
4.1
is ...
teoarthritis of the left knee which ad-
essential
in
both
the examination and in
versely impacted
progression
of de-
disability,
evaluation of a
that each
generative
right
disease of the
hip disability be
in
viewed
relation to its histo
aggravated
symptoms”
his
and that his
ry.”).
“in
injury
service left knee
in
resulted
an Moreover, Dr. Henderson’s diagnosis
irregular gait pattern
directly
which
ag-
definitive,
was not
stating that
the “fact
gravated
right hip
his
symptoms.” R. at
hips
both
and knees are
affected
Further,
the Board noted Dr. Tho-
(i.e.,
problem
this
degenerative joint
[
dis-
opinion
burn’s
that Mr. Padgett’s “left
ease) suggest[s]
]
that it
a consequence
is
knee condition resulted in
weight
his
aging process,”
further stating that
side,
shifting to the right
which resulted
the “fact that
injure
he did
the left knee
progression
of osteoarthritis of the
suggests]
...
years
ago
may
right hip.” Id.
played
part
have
a
damage
to the opinions
contrast
of Drs. Shaw required
replacement,
a knee
but not nec-
Thoburn,
which
personal
are based on
essarily a hip replacement,” and further
examinations and knowledge of Mr. Pad-
noting that
opinion,
“[f]or more definitive
gett’s pertinent
physical
medical and
suggested
histo-
it is
that a certified orthopedist
is
with the circum
(emphasis
R.
evidence
consistent
at 363
this case.”
review
stances,
hardships
of such
added).
conditions
statement diminishes
The latter
Brown,
service”);
7 Vet.App.
Caluza v.
report
proba
of this
further the value
cf.
(1995)
(lay evidence of veteran’s
v.
Espiritu
See
tive medical evidence.
injury
accepted by
must be
(1992) combat-related
Derwinski, Vet.App.
494-95
proof of
in-
Board as sufficient
in-service
re
special knowledge
involving
(question
injury
aggravation
currence or
absent
area);
in that
see
skilled
quires witness
convincing proof
contrary),
clear
Brown,
also Sklar
(Fed.Cir.1996) (table).
aff'd,
Dr. Blincow makes no reference Padgett’s of Mr. com- in-service incurrence reports Despite the infirmities Blincow, right-hip injury, which the bat-related and and the lack Drs. Henderson Mr. having opinions occurred as accepted regarding as infirmities of such Thoburn, 16; R. at see 38 Padgett had asserted. Shaw and Drs. 3.304(d) 1154(b); opin- § value of the probative C.F.R. that the found “far (“[satisfactory lay or other evidence Drs. and Blincow ions of Henderson outweighed” was incurred or the value of injury
that an
or disease
on this
and Thoburn. Based
will be
as Drs. Shaw
aggravated
accepted
combat
evidence, the Board found
weighing
if
of the
connection the
proof of service
sufficient
Padgett’s right-hip injury
preponderance
that Mr.
of the
was
evidence
be
must
connected
secondarily service
because the
against
the claim
benefits to
de
be
preponderance
against
nied”).
of the evidence was
Accordingly,
claim
However, given
that claim. R. at 18.
disability
benefits
of a
-basis
weight,
if any,
probative
little
that can
disability
right-hip
-secondary
ser
to his
reasonably
legally
be
accorded the
vice-connected
left-knee-disability will
Blincow,
Henderson
of Drs.
assignment
disability
remanded for
of a
as opposed to the
of Drs. Shaw rating and the
date
effective
thereof. See
strongly
support
Thoburn
second
West,
Fenderson v.
ary service connection for the right-hip
(1999) (remanding for consideration of
injury, the
of the
Board that the
staged
ratings
connection with initial
preponderated against
evidence
this claim
connection).
award of service
simply
“plausible
in light
Finally, the
*17
argu-
Court’s review the Board’s
(Court
or
clearly
must “reverse
set aside”
ably clearly erroneous denial of a claim
fact);
finding
erroneous
of material
Pull
is to stand the statute and common
Swint,
man-Standard v.
456 U.S.
sense on
heads.
their
(1982)
(re
102 S.Ct.
pear[ed] or Blineow nor Dr. Henderson knew un- sus- history having self-reported gett’s actually had Padgett that Mr. or derstood injury in service.” The right-hip tained a presumably injured right hip during his alia, finding upon, inter its Board relied II, accepted in World War as was combat medical evidence probative that “the most by the R. at 16. With- as true Board. See faulty previously file”-—the discussed on information, out this these doctors could and Drs. Henderson Blineow— reports of (and not) opinion regard- did form an right-hip that failed to demonstrate ing the in-service incur- nexus between aggravated injury was incurred or injury right- his current rence of injury that the was manifested service or Caluza, disability. hip See ser- year discharge after within one (service requires medical connection vice. R. at 16-17. or ag- between in-service incurrence nexus outset, incon At we a serious note gravation injury appellant’s current accepts correctly that the Board gruity in disability). Accordingly, as insofar these Padgett injured true his as presumptive- or reports relate to direct- II, War hip during combat World assessment, they have service-connection 3.304(d) 1154(b); 38 C.F.R. probative no value. See Mariano and (2004); Caluza, rejects supra, but then cf. Reonal, supra. both opinions of Shaw Drs. probative as Thorburn, they part, because relied secondary with the service-con Whereas in Padgett’s report that he had issue the record contains substan nection R. at 16. jured right hip his service. Padgett’s right-hip tial that Mr. evidence Having accepted as true that Mr. secondary to his service- disability was war, it injured right hip during was injury left-knee and the Board’s connected reject reports of Drs. error then preponderated decision they relied on and Thorburn because Shaw erroneous, clearly against that claim was Derwinski, Bailey v. 1 Vet. fact. Cf. reversal, warranting the record is silent as (reversing clearly as App. between Mr. to medical nexus 1990 Board that arthritis erroneous disability the incur- right-hip current rath process was to aging of shoulder due rence, presumptive bas either on direct when Board had er than trauma es, injury in right-hip service. See of his found that “almost identical evidence” Moreover, Caluza, necessary supra. arthritis to arthritis wrist showed made cannot be factual determinations nature); see also Otero- posttraumatic *18 first instance. See Hens this Court 375, 382 Principi, Vet.App. 16 Castro v. (Fed.Cir. 1255, West, 212 F.3d 1263 ley v. supra); (2002) Bailey, Thomas (relying 2000) appropri tribunals are not (appellate (2002) Vet.App. 16 200 Principi, factfinding); also see 38 ate fora for initial that (citing Bailey, supra, proposition 7261(c). § be because inconsis Board “must reversed of the Board Accordingly, the decision in ‘arbi factfinding tent VA was reached disability Padgett’s claim for as to Mr. of trary capricious’ manner violation 7261(a)(3)(A)”). right-hip disability on di- remand, for his § benefits On bases will set aside pro- presumptive rect or be may assign diminished the Board 152 readjudica
and the matter remanded for REMANDED for further con- proceedings any development tion and additional neces sistent this opinion. Bucklinger v. sary. See 5 Vet. PART; REVERSED IN SET ASIDE (1993) (remand
App. appro 440 PART; IN and REMANDED. when priate remedy the Board has failed fact); necessary findings to make 38 Board, (requiring
C.F.R.
19.9
HAGEL, Judge, concurring in
part
development
necessary,
when additional
dissenting
part:
development
RO for
remand to
further
join
I
the Court’s
the ex
personnel
to direct Board
undertake
tent
prece
overrules
Court’s
action).
appropriate
dents
“can
read
support
Proceedings
C. Remand
proposition that a Board finding [of fact]
remand,
Padgett
On
will have the
be clearly
cannot
erroneous unless the evi
opportunity
present any
additional evi
against
dence
is uncontrovert-
argument
dence and
support
ed.” Ante at 147. Reversal is not limited
claim,
any
and the Board must consider
to instances where the evidence is uncon-
argument
evidence and
presented.
so
See
in an appellant’s
troverted
favor—that lim
Kay
Principi,
16 Vet.App.
534 itation sets the
prohibitively high.
bar
(2002).
The Court notes that Mr.
Rather,
can
Court
reverse a Board
years
is a combat veteran who is now 83
finding of fact
possesses
when
Court
old
already
and has
waited over twelve
“a definite and firm conviction that a mis
years to
finally
have his claim
decided.
take has been committed.” Hersey v. Der
this,
light
judgment
will be entered and winski,
2 Vet.App.
(quoting
days
mandate will
issue
after
date
Co.,
United
Gypsum
States v. U.S.
on which this
is issued. See U.S.
364, 395,
U.S.
S.Ct.
L.Ed. 746
(mo
rules),
R. 2 (suspension of
(1948)). It is unfortunate that
uncon-
reconsideration),
tion
(entry
judg
crept
troverted-evidence standard has
into
41(a) (issuance
ment),
mandate);
jurisprudence,
our
I
pleased
am
(same
Mariano,
also
exempt from an appellant’s
statutory
to “one review on
Secretary”
IV. CONCLUSION
7104(a).
provided
for in 38 U.S.C.
On consideration of
foregoing,
In Disabled American Veterans v. Sec
August
2002, decision of the Board with
retary
Affairs,
Veterans
the Federal
regard
Padgett’s secondary-service-
to Mr.
regulation
Circuit
invalidated VA
right-hip
connection
disability claim is RE-
19.9(a)(2) (2002)
C.F.R.
VERSED;
because that
the decision with
to Mr.
regard
*19
regulation
Board,
would have
presumptive and
allowed the
direct service-
only
connection right-hip disability
appellate
“the
claims is
tribunal under the Sec
ASIDE;
SET
retary,”
and the entire matter
“to gather and consider evidence
considering in the first
evi-
regional of
from
instance
the
been before
that had not
obtaining
appel-
to
either
an
having
the case
dence without
to remand
fice without
consideration
regional
‘for initial
lant’s waiver of
office consider-
regional
the
office
appel
statutory
to obtain the
having
express
and without
ation of that evidence or
”
(Fed.
1339, 1347
327 F.3d
the
authority
lant’s waiver.’
to consider such evidence in
Cir.2003)
Sec’y The
].
DAV v.
[hereinafter
of a
a waiver.
absence
such
sec
its
on
Circuit based
Federal
5107(a)
First,
§
I note that 38 U.S.C.
7104(a),
ques
that “all
provides
tion
which
(2000)
the
expressly
did not
authorize
subject
...
to
in a matter which
tions
opinions
medical
from
Board
obtain
subject
Secretary
by the
decision
shall
that
Secretary for Health and
VA’s Under
Secretary”
to the
appeal
review on
one
majority
to concede as much.
appears
view,
because,
in its
“[w]hen
5107(a) (2000) (providing,
§
U.S.C.
See 38
that was not considered
obtains evidence
prior to the enactment
the Veterans
[regional
and does not obtain
office]
No.
Assistance Act of
Pub.L.
Claims
waiver,
appellant
...
an
the appellant’s
106-475,
Stat.2096,
that
Secre-
“[t]he
review on
has
to obtain ‘one
no means
tary
sueh a claimant in devel-
shall assist
Secretary’ because the Board
appeal to the
claim”);
pertinent
to the
oping the facts
only
under the
appellate tribunal
is the
(“[W]e note
ante at 139
that
decision,
Secretary.”
reaching
Id.
5107(a)
expressly
does not
authorize
stated,
then
in what
the Federal Circuit
opin-
Board to
or secure medical
obtain
dicta,
fairly as
as
can be characterized
ions”).
I
that VA is not Con-
also note
follows:
regulation
cited to
gress
Furthermore,
Con-
we note that when
20.901(a)
Circuit,
§
38 C.F.R.
Federal
authorize the Board to
gress intended to
(b),
support the
proposition
cannot
without “one
obtain additional
they
cited, namely
which
are
that “Con-
Secretary,” it
appeal
on
to the
review
provided
statutory au-
gress
express
has
pro-
Congress
do
has
knew how to
so.
addi-
thority
permit
the Board to obtain
authority
statutory
express
vided
evidence,
expert
medical
tional
such
permit
Board to obtain additional
Sec’y,
opinions
specific
cases.” DAV v.
evidence,
expert
opin-
medical
such as
1347;
Jameson &
327 F.3d
see William
See,
specific
e.g.,
cases.
ions
173-174,
Morgenthau, 307 U.S.
Co. v.
(authorizing
§
1189(1939)
(noting
83 L.Ed.
59 S.Ct.
opinions
Board to obtain
regulation
administrative
does
an
Secretary for Health
Under
the VA’s
Congress).
an Act of
equate to
Director));
the Chief Medical
(formerly
(2000) (authorizing
that that
appears
for section
As
independent
obtain
Board to
cited to
statute is
VA);
arguably
from outside
can
Circuit that
even
Federal
20.901(a)
(authorizing
Congress
per-
C.F.R.
support
proposition
from the Veter-
Board
obtain
to obtain
mitted
Administration);
Health
38 C.F.R.
ans
such evidence
opinions and to consider
20.901(b)
obtain
(authorizing
Board to
entitling
ap-
without
an
the first instance
from the Armed Forces
to the
pellant to
review
“one
Pathology).
7104(a).
Institute of
Never-
Secretary.” 38 U.S.C.
added).
theless,
assuming for the sake
even
In other
(emphasis
Id. at 1347-48
enacting
sec-
argument
Congress,
words,
Sec’y
in DAV v.
the Federal Circuit
exception
tion
carved out
prohibited
that the Board is
instructed us
*20
appellant
right of an
to one review
ultimately became
is
what
now section
in
Secretary,
my
to the
view Mr.
making
was therefore
“no reference
implicate
case does not
section to the Board securing
advisory
an
opinion
only way
majority
7109. The
can con-
from the Chief Medical Director of VA.”
§ 20.901
S.Rep.
excep-
clude that
establishes an
(1962), reprinted
in
No. 87-1844
tion to
section
is
conclude that
regard,
U.S.C.C.A.N.
that
I
2586.
provides adequate
section
congres-
note
the existence of authority
sional
regulation.
for this
Be-
provided
which
the Administrator
(1962),
majority’s
premised
cause the
decision is
(now
Secretary)
with the
“to
authority
on the conclusion that
pro-
section 7109
assign
...
duties
to such ... employees as
authority
vides
for the
obtain and
may
he
necessary.”
my
find
It
beyond
is
consider
medical opinions
VA
in addition
comprehension
Congress
that
pass
would
a
independent
opinions,
medical
I cannot
purpose
statute whose
was to authorize
concur in
portion
that
of the
opin-
Court’s
that
already
which was
authorized and to
Further,
ion.
whether section 7109 estab-
provide authority
practice already
for a
exception
lishes an
principle
to the
ex-
by
supported
ample authority.
pounded in DAV v.
Sec’y
cases where
Artfully casting Congress
having “ap-
independent medical opinions
request-
are
proved”
a preexisting practice
of
or as
and,
so,
ed
parameters
if
of such an
having “sanctioned”
a practice
such
does
exception
appropriately
would be more
ex-
not transform what
recogni-
is
essence a
amined in a case
those
where
issues are
tion of then-preexisting authority
squarely
into
presented. This is not such a
grants
instrument
that
such authority.
case.
See
at
Ante
141. As I read section 7109
majority’s
conclusion to the con-
legislative
its
history, that
did
section
trary
solely
turns
on the
existence
sec-
thing
one
and one thing only; it authorized
tion
phrase
nonessential
“in
the Board to obtain
addition to that available within
De-
experts who were independent of VA. The
partment.”
view,
Ante at
In my
141.
of
initiation
the legislative process that
majority,
analyze
in its rush to
the evi-
culminated
passage what
now
dence and reach a conclusion with
I
which
section
7109 was motivated
desire
am in sympathy,
adopted
has
an interpre-
combat
perception
of VA bias
tation of section 7109 that stretches the
veteran,
“inspire,
in the confidence
phrase “in addition to that available within
that
objective
his claim is receiving
consid-
the Department”
Congress,
too far.
Cong.
eration.” 108
(Apr.
H5518
section 7109 itself and in the legislative
Rec.
1962) (statement
Lane).
history
Rep.
underlying
statute,
For that
merely
that
reason,
above,
in addition
recognized
existed,
to those
that there
stated
the time
enacted,
strikes
as improvident
very
me
preexisting
statute was
cite the
authority
statute
practice
for the
that authorized the
pro-
Board’s
Board to
ob-
taining
cure
VA
non-VA medical
au-
author-
as the
—such
ity
thority
was not vested in
for the
Board to obtain VA
section
opinions.
said,
The Senate committee’s
That
do
question
statement
I
makes clear that “ample authority”
whether the
permitted
for the
Board is
to obtain
practice
securing
Board’s
opinions;
VA medical
simply express my
I
already
from within
VA
existed at
vested in the
20.901(a)
time
7109’s enactment and Board
rooted in sec-
bill,
the Senate version
elsewhere,
which tion 7109 but
instance
*21
of Dr. Blin-
authority
regional office consideration
cites
20.901
5103A(d)
to
he
done
opinion.
in addition
cow’s
If
had
so before
I do not believe that section
us,
Because
not
us
inappropriate
it would
to
that
the Board
permits
the
is
findings
the Board’s
of fact with
review
opinions,
I see
because
obtain VA
respect to that
of evidence. Howev-
piece
5103A(d)
that section
no reason
believe
er,
argument
he
not
such an
has
advanced
7104(a),
exception
to section
establishes
request. Specifically,
such a
he
nor made
statutory authority
and because no other
not
based on a review
does
seek reversal
permit the
has
advanced that would
been
by
all of the evidence considered
the
the
Board to consider in
first
instance Board,
only portion
but
thereof —his ar-
opinions,
an ex
Board-ordered VA
is
on
gument
premised
for reversal
his
7104(a)’s grant of “one
ception to section
contention
the Court should exclude
Secretary”
not
appeal
on
the
review
due
alleged
from consideration
to various
in the instant case. Absent
implicated
inadequacies
procedural
or
defects VA
Federal Circuit’s
exception,
such an
the
including that of Dr.
opinions,
Sec’y
in
v.
me to
compels
DAV
decision
(Br.)
16-26;
Brief
Appellant’s
Blincow.
the Board can consid
conclude
before
argued
He has
Br. at 6-7.
never
Reply
opinion that
it orders
er a
VA
reversal
on a review of all the
based
20.901,
§to
it must either obtain
pursuant
record, i.e.,
totality of
the
the
evidence
regional
waiver of
office
the claimant’s
by the
in
upon
evidence relied
ren-
.or remand
consideration of
waiver, he
dering
Regarding
its decision.
adjudication.
regional
the matter for
office
ability
well aware
his
to waive his
was
Sec’y,
DAV v.
appropriate fora
Padgett had
us to review
If Mr.
wanted
IVERS,
Judge, dissenting:
Chief
factual conclusions with re-
Board’s
Hagel finds that the ma-
Judge
he
Because
opinion,
to Dr.
could
spect
Blincow’s
regarding the
analysis
argued
jority
have waived
errs
its
have so
and could
applicability of Disabled Am. Veterans
to reach its
order
conclusion that reversal
*22
Affairs, 327 F.3d
Sec’y
here,
Veterans
1339 rather
than remand
proper
is
the
(Fed.Cir.2003),
matter,
to
while engag-
this
majority
that,
certainty
must know with
factfinding
ing
impermissible
in
to reach
examinations,
in
but for the flaws
the VA
reversal,
its
rather
than
conclusion
appel-
the Board would have found in the
remedy,
appropriate
join
remand
the
I
is
By
favor.
and
weighing
discounting
lant’s
However, I
in his
statement.
separate
evidence,
of
majority
only
some
the
leaves
my
to
own
separately
write
address
con-
favoring
appellant’s
medical evidence
the
that,
clearly
in
cerns
its effort to reach a
evidence,
claim. That
the
by
Court’s ac-
outcome,
sympathetic
majority ignores
the
tion, then becomes uncontroverted.
appellate body,
this Court’s role
an
and
as
majori
I
with
disagree
While do not
the
parses the
evidence of record to
ty’s statement that “the existence of some
at that
arrive
outcome.
controverting
pre
evidence ... does not
Judge Hagel correctly
As
in
states
carrying
clude this Court from
out the
dissent,
Court,
an appellate body,
this
7261(a)(4)
(b)(1)”,
mandates in section
prohibited
longstand
both
statute and
I
with
strongly disagree
majori
must
the
ing precedent,
making
findings
initial
ty’s treatment
our jurisprudence
in both
7261(c);
fact.
See 38 U.S.C.
Andre v.
Derwinski,
Hersey
(1992),
bert, apply has the Court continued Principi, Duenas 18
definition. See v. (2004); Burris v. Princi
Vet.App. (2001); Bowling v.
pi Vet.App. (2001);
Principi, Vet.App. 15-16 West, (1999);
Pond 10 Vet.App. 249-50
Villano v.
(1997); Principi Slater order); Hersey, (per curiam notes court “would feel obligated to fol that section authorizes the Board low the Supreme explicit Court’s and care to “secure” expert fully statements”); considered Ins. Co. of does not explicitly state that States, the West v. United 243 F.3d
Notes
notes Court that it would be entirety,” Gilbert, record viewed in its 7104(a), anomalous use Anderson, (quoting at 52 provision provide designed to VA claim- 1504); U.S. 105 S.Ct. see also 38 protection ants the benefit ad- of an 3.303(a) (2004) (“[djeterminations C.F.R. VA, appeal process ministrative within as to service connection will be based on deny judicial meaningful review in this record”), review of the entire evidence of Court. “ Such an aberrant shield-to-sword and the Court ‘the has definite and firm transformation, which was embraced conviction that a mistake has been commit ” panel opinion now-withdrawn that this Gilbert, ted.’ supra (quoting Gyp U.S. opinion replaces, full-Court was addressed Co., Mariano, sum supra); 17 Vet. case, in the earlier consideration of App. at 314-17. follows: plausible key resolution of the The right to “one review on appeal to factual issue on record in this case is provided the Secretary” in section Padgett’s right-hip disability was process right guaranteed is a aggravated by his service-connected left- claimants, VA not the Secretary who disability, knee and the Board’s decision clearly has no to this preponderated against permit Court. To the appellant’s pro- be, be, this claim must therefore and will operate cess right to as a shield from 7261(a)(4) reversed. See 38 U.S.C.