Disabled American Veterans v. Secretary of Veterans Affairs

VETERANS, AMERICAN DISABLED

Petitioner, Legion and the National

The American Program Legal Services

Veterans

Petitioners, OF VETERANS

SECRETARY

AFFAIRS, Respondent.

Nos. 04-7128. Appeals,

United States Court

Federal Circuit.

Aug. Smith, L. Disabled American

Ronald Veterans, DC, argued for Washington, Disabled American Veterans. petitioner him was Donald E. on the brief With Purcell. Holmes, LLP, Steptoe

Ana & Johnson DC, petitioners Washington, argued The National Legion The American Program. Legal On Services Of coun- Jeffrey E. McFadden. brief Stichman, was Barton F. sel on the brief Pro- Legal Services National Veterans Washington, gram, of DC. Jr., Hockey, Trial

Martin F. Senior Branch, Counsel, Litigation Commercial Division, United States Civil Justice, DC, argued for Washington, were him on the brief respondent. With Keisler, Attorney Gen- Peter D. Assistant omitted). Cothran, (11th Cir.1988) (quotation society.” United States v. 511(a). Cohen, a practical eral David M. Director. Of U.S.C. As matter and Melnick, A. Mark Assistant by counsel were made usually initial decision is the Sec- Ashworth, Director, Attor- and Cristina C. delegate retary’s regional at the office un- ney. counsel on the were Michael Of brief 3.100. The der of 38 C.F.R. Timiniski, Deputy J. Assistant General initial entity renders the decision is Sendek, Counsel, At- and Martin J. Staff jurisdic- “agency original known as the torney, Department States of Vet- United tion,” but for Affairs, of Washington, erans DC. we refer to it as convenience will the re- gional office. MICHEL, Judge, Before MAYER DYK, Judges. and Circuit Generally, a veteran who claims en disability compensation titlement to the court bene Opinion for filed Circuit (1) (2) disability; DYK. fits must show a current Judge disease, injury precipitating an in-service Dissenting opinion filed Circuit event; or and between cur nexus Judge MAYER. disability rent and the in-service events. DYK, Judge. Circuit Gober, Epps v. F.3d See Veterans, (Fed.Cir.1997); Disabled American the Ameri- see also Shedden Prin can and the Legion, National Veterans (Fed.Cir.2004) cipi, 381 Legal Program (collectively “peti- Services injury (presumption that an incurred dur tioners”) petition regulation for review of a service-connected). active ing duty is promulgated of Veterans opinion Medical evidence and medical is 20.901(a). Affairs, We hold important whether regulation accordingly that the is valid a disability there is and whether that dis deny petition review. ability is service-connected. Recognizing importance

BACKGROUND opinion, Congress medical evidence and involves a that au- This case specifically duty vested the VA with Appeals thorizes the Board of Veterans provide a medical examination and to ob- (hereinafter “Board”) to secure medical tain a medical opinion “when such an ex- professionals from health care necessary amination or make within Affairs on a decision the claim.” 38 (“VA”). background on the adminis- Some 5103A(d) (2000). The statute deems helpful tration of veterans benefits is to be evidence and neces- understanding operation regula- of this sary when the “contains competent tion. record evidence that has a the claimant current Among the most important benefit ..., disability disability indicates that the programs administered the VA is the symptoms may be associated with the disability compensation program, which claimant’s ... service” active and “does provides compensation to veterans who not contain sufficient medical evidence for “disability resulting personal suffer a to make decision on the injury suffered or contracted in disease Thus, claim.” Id. duty.” line of A making of an initial determination on a claiming appli- veteran benefits submits claim, VA, generally required by the VA is cation to the an initial decision on to make benefits is rendered reasonable efforts to ob- records, (“Secretary”) Veterans Affairs under tain relevant to provide examinations, and to secure medi- rule any change without in the text. 69 opinions. Fed.Reg. (Apr. states: appellate body The Board is an within Opinion the Veterans Health Ad- that reviews initial decisions made ministration. The Board obtain a § under 38 U.S.C. 511. “Decisions of the opinion appropriate from an Board based on the entire record.” [are] professional health care in the Veterans 7104(a) (2000). § 38 U.S.C. As we have Health Depart- Administration of the noted, the Board conducts de novo review ment of Veterans Affairs on medical regional proceedings of office based on the questions involved in the consideration West, record. See Donovan v. 158 F.3d when, of an appeal judgment, in its (Fed.Cir.1998). 1377, 1381 The Board de- medical expertise equitable is needed for 35,000 40,000 approximately cides cases disposition an appeal. year. per 20.901(a) (2004). § 38 C.F.R. regula- The In a departure pri- from the Board’s tions also that the veteran must be mary appellate body, function as an VA furnished with a copy of the regulations early have since the al- 1960s given days to respond. opin- lowed the Board to secure medical 20.903(a) (2004). § rule, In the final ions from within the from the Chief §§ cited 38 U.S.C. 5103A and (now Medical Director the Under-Secre- regulation. as for the Health). 1999, tary of In the Board ob- 20.901(a) (2004). C.F.R. tained 482 medical from the Chief Petitioners contend that 38 C.F.R. securing Medical Director. The of such is invalid because it contrary opinions by the Board avoids remand. appellate function of the Board and The regulation permitting obtaining appeal” requirement “one review on of medical from the Chief Medical 7104(a). jurisdiction haveWe 1964,1 adopted Director was first in but the pursuant to 38 502. practice has existed since at least 1962. was renumbered sever- DISCUSSION al minor amendments were made over the I 2001, years.2 next 35 present, adopted somewhat broader was There is no doubt that the chal rule, as an interim final but lenged regulation does allow the Board to invited concerning proposed comments consider evidence was not before the 38158, final Fed.Reg. (July rule. 66 regional office an original as matter. Nor comments, receiving After general is there doubt that the Board adopted ly interim final rule was final appellate capacity. as the functions in an regulation provided: provided: first 2. The version effect in 2000 Opinion Opinion Medical Director. The Medical Director. The Chief expert Board obtain an obtain medical ion from the Chief Medical Director of the the Chief Medical of the Veterans Director ques- Veterans Administration on medical Health Administration of the tions involved in the consideration of an in- Affairs on medical appeal, judgment when in its such medical volved in the consideration of an when, expertise, judgment, exper- addition that available from in its such medical staff, equitable disposition the Board's an is needed for tise is needed for equitable disposition appeal. appeal. 20.901(a) (2000). 38 C.F.R. 19.144 retary. appeals Final on such by Ex- decisions Board was first established Board. shall be made Decisions and then

ecutive Order of the Board shall be based on the entire 22, 1946, ch. 60 Stat. 299. Act of June proceeding. record functions were codified into statute Its (emphasis As we held Disabled Benefits Act of Pub.L. the Veterans American Veterans v. Veter 83. As described Stat. (Fed. Affairs, ans 327 F.3d 1346-47 Nicholson, 398 F.3d Bates v. Cir.2003) (“DAV I”), this “one review on (Fed.Cir.2005), the Board’s existence and appeal” provision gener of section appellate long function performance of ally considering the Board from new bars of veterans predated judicial review regional evidence before claims, until provided was not which office. Act, Review Pub.L. See Judicial Veterans’ I, petitioner challenged DAV the the (1988). 100-687,102 4105 Stat. 19.9(a)(2) (2002), § validity of 38 C.F.R. Incorporating prior regulation, the sec- provided: which 1304(a) Benefits Act tion of the Veterans’ If further ... or evidence other provided of 1957 that: a proper appellate action is essential for involving decision, All on claims bene- questions panel a or Board Member [djirect ... by per- Members Board fits under the laws administered sonnel to undertake the action essential Veterans’ Administration shall be sub- a proper appellate decision. ject to the appeal to one review on Ad- 19.9(a)(2) ap- Final on such § ministrator. decisions We held was “inconsistent 7104(a), § with 38 peals be made the Board. U.S.C. because shall 19.9(a)(2) § appellants denies ‘one review 1304(a), § 71 Veterans’ Benefits Act Stat. appeal Secretary’ on when the subject provision at This has been to Board considers additional evidence.” amendments, currently ap- minor I, However, at in DAV 7104(a), § pears pro- which 38 U.S.C. I we also DAV noted there were vides, pertinent part: in exceptions “Congress several where has All a matter which under provided express statutory authority to 511(a) subject section of this title is to permit Board to obtain additional evi dence, decision shall be sub- expert opinions such as ject specific to one review on to the Sec- cases.” Id.3 3. The DAVI stated: Id. at 1347-48. The citation to 38 U.S.C. § pre-2000 pro- referred to the code provided express statutory has au- concerning Secretary’s duty vision to as- thority permit to the Board to obtain addi- claimants, evidence, sist and not 2000 version. expert tional such as See, provision That earlier stated: “The opinions specific e.g., cases. 5107(a) (2000) developing § shall assist such a claimant in (authorizing U.S.C. Board pertinent opinions facts to the claim. Such assistance to obtain medical from the VA’s (formerly requesting shall include Under for Health information as de- Director)); § Chief Medical in section 5106 of this 38 U.S.C. 7109 scribed title.” 38 (2000) (1994). § (authorizing provision The now Board to obtain inde- is pendent opinions codified with amendments at 38 U.S.C. from outside the 5103A, VA); 20.901(a) (2002) (autho- part 38 C.F.R. and the VA relied in on this rizing provision promulgating Board to obtain from the Administration); light upholding Veterans Health 20.901. In of our decision 20.901(b) (authorizing under section we need obtain petitioners' argument the Armed not address that section Forces Pathology). authority, Institute of 5103A cannot be a source of Board expert that the actual selection of the

II experts give advisory opinion that 38 U.S.C. argues government an individual case shall be made Secretary as au- on relied institution, appropriate official of such regulation, thority promulgating (c)The Board shall furnish a claimant necessary exception creates the advisory notice that an with rule in section appeal” review on “one requested under opinion has been that, government argues also respect section with to the claimant’s statutory authority ambigu- is if the even case shall furnish the claimant with ous, .and given should be the Sec- deference re- copy of such of the statute under retary’s interpretation ceived the Board. Inc. v. Natural Resources Chevron U.S.A. Inc., 467 Council. U.S. (emphasis

Defense L.Ed.2d 694 We S.Ct. petitioners agree that section 7109 clearly provides conclude that the statute advisory the Board to secure authorizes do for the and thus “independent medi- id. at not reach the deference issue. See employees” who are not (“If court, em- 843 n. 104 S.Ct. they argue VA. But that the statute does statutory tools of con- ploying traditional securing not authorize the of medical struction, an Congress that had ascertains the ions within VA. issue, precise question on the intention However, language the of section given that intention is the law and must be that the Board explicitly provides 7109 effect.”). “in the obtain medical in 1962 and Section 7109 was enacted Board, expert judgment of the currently provides: with opinion, in addition to that available Independent Department, is warranted the (a) Board, complexity controversy involved When, judgment the added). appeal.” (emphasis in an Id. In opinion, in addition to expert medical States, v. 244 U.S. Lewis United Department, within the that available 61 L.Ed. 1039 Su complexity the medical or S.Ct. warranted case, statutory preme held that a similar controversy involved in an Court legis advisory assuming the existence of provision, the Board secure an medi- action, indepen- equivalent provid one or more of cal lative was authority. are not em- The issue in ing legislative dent medical who Department. surveyor of ployees of the Leivis whether the office was of had been abolished (b) general Louisiana make The shall The relevant statute did statute. arrangements recognized with office, appear expressly abolish schools, universities, or clinics to furnish rather, only appropriated on its face at the advisory such of light funds in of an assumed abolition chairman of the Board. request of the held: Supreme the office.4 The Court Any arrangement shall such Minnesota, Dakota, and of North we decide whether section 5103A States nor need Louisiana, authority regulation. caused the discontinuance provides for the general surveyors in those offices of provided: relevant States, dollars [is six thousand five hundred appropriated]. Secretary of the Interior to To enable the 4, 1909, (empha- Mar. 35 Stat. drafting Act of complete the unfinished and field- writing pertaining surveys in the sis note upon practice, the as- but wished to leave the Congress acted [W]hen that the office sumption was abolished over Board with discretion the matter. provided for the unfinished work Report The Senate stated: surveys, pertaining to the “caused bill, committee, approved by as office, the discontinuance” of the makes no reference to the Board of Vet- repeal action tantamount to a direct securing advisory Appeals erans’ creating act the office and had the opinion from the Medical Director effect to abolish it. Agency ... since this is a matter within In the U.S. at 37 S.Ct. 570. ample authority discretion and present Congress case enacted section fact, practice now exists. the com- upon assumption' expressed — mittee was informed that between 200 statutory text —that the Board had per year currently and 300 cases are authority procure an internal VA medi- Medical submitted the Chief Director Lewis, opinion. such action is Under by the Appeals Board Veterans’ grant to a tantamount direct expert advisory opinions. to secure internal in section (1962) 87-1844, S.Rep. at 2 (emphasis 7109.5 added). The Senate version of the bill was statutory if Even text were not eventually passed. Cong. See 108 Rec. authorization, clearly an section 7109 was 4, 1962); (Sept. Padgett see also against background long- enacted of a Nicholson, 133, 141-42 Vet.App. standing agency practice securing inter- (summarizing legislative history opinions. nal VA medical This legislative history shows antedated the of section enactment in enacting section 7109 19, 1962, Act Sept. Pub.L. No. contemplated departmental original 76 Stat. 557. The House opinions would be secured the Board.6 version of Public Law 87-671 would have Both prior subsequent to the enact- explicitly required Di- the Chief Medical 7109, ment of Congress section has done opinions rector to submit medical nothing agency to disturb this well-settled categories Board in certain of cases. See practice, and Report as Senate 87-1844 2, Cong. Rec. (Apr. indicates, this inaction was intentional. As The Senate version of the bill removed the Supreme Court and this court have mandatory requirement of securing medi- held, repeatedly congressional in inaction from the Chief Medical Di- long-standing agency the face of practice rector. legislative history clear makes can rise implied adoption. that not in to the level way disap- was proving already-existing Co., the Board’s then Thus United States v. Midwest Oil points authority To be sure the dissent out that the mittee believed there was [the for heading "Independent 7109 refers to Board to obtain and consider medical opinions.” heading But the cannot employees].”). ions offered VA The 1962 statutory limit the authorization to such inde- legislative history is not undermined pendent because "the title subsequent legislative history ain 1988 House heading a statute and the of a section Report, stating that the Board its "on plain meaning cannot limit the text.” initiative, own obtain medical advice from Bhd. R.R. Trainmen v. Baltimore & Ohio independent specialists.” H.R.Rep. R.R., 519, 528-29, 1387, 331 U.S. 67 S.Ct. 100-963, (1988). at 15 This statement L.Ed. 1646 obtaining implicitly does not exclude opinions from within the VA. 6. See Br. of Disabled American ("[T]he report indicates that in 1962 the Com- 459, 309, contrast, 236 U.S. 35 S.Ct. L.Ed. 673 S.Ct. 552.7 when Congress congressional the Court held enacted section 7109 it only was not aware long-standing of a Exec silence the face practice of the Board’s of securing internal temporarily withdrawing practice utive opinions, explicitly it recog (a public private acquisition land practice nized and endorsed that in both practice reported to Congress) was legislative history statutory and the “equivalent was consent continue the circumstances, text. Under these Gardner until power was revoked does not undermine our conclusion that subsequent by Congress.” some action Congress has ratified and authorized the 481, 309; Id. at see 35 S.Ct. United States Board’s long-standing practice. Sears v. Ass’ns, 534, Trucking v. Am. 310 U.S. (Fed.Cir. 1326, Principi, 349 F.3d 60 S.Ct. 84 L.Ed. 1345 2003) (“When considering legislative Tech., (1940); Micron Inc. v. United provisions, context of these it is also worth (Fed.Cir. States, 243 F.3d 1312 n. 10 noting that the DVA has been 2001) cases); (collecting San Kuan New place many years, legislative without Tech, Int’l, Inc., High Materials Inc. v. overruling, despite frequent legislation (Fed.Cir.1999) (noting by Congress.”). that Congress agency practice ratifies Finally, reject petitioner we American legislates when it in that area of law cov that, Legion’s argument even if the Board by practice, ered with full awareness of opinions, authorized to secure VA agency’s practice, change and does not them, not then consider for authority to Here, to that practice). long refer consider an inherently flows from standing agency practice, recognized both to secure it. also note We legislative history and the text of that, brief, reply the first time in its specifically approved. section Legion argued the American has that the out, points As the dissent reliance on current is overbroad because it long-standing agency practice must be securing allows the tempered caution in with some the veter- any “appropriate profes- health care judicial ans context because review was sional the Veterans Health Administra- provided until 1988. Thus Brown v. tion” instead of the Chief Medical Gardner, 115, 122, 513 U.S. 115 S.Ct. Director, legislative history only since the Supreme L.Ed.2d 462 the receiving noted the of despite Court held a VA invalid from the Medical Director. We re- the fact that it had sixty existed for over ject argument that because section 7109 years. plainly distinguishable. Gardner is broadly permits the Board to obtain medi- congressional Gardner “the record of from Department” “within the discussion preceding reenactment [made] as a whole. no regulation, reference to the VA and Thus, we conclude that the au- suggest there no other evidence to [was] Congress was even aware of thorizes the Board to secure medical the VA’s interpretive position.” Id. at Department” 115 ions “within the while a States, despite having knowledge.”); 7. See also v. Schism United 316 F.3d Butter (Fed.Cir.2002) (en banc) (''[T]he Justice, baugh Dep’t v. 336 F.3d of (Fed.Cir.2003) ("[C]ourts Supreme repeatedly pre Court has made clear are loath to important acquiescence congressional that an foundation of sume endorsement unless the Congress plainly subject congres is that as a whole was made the aware issue has been Tech., attention.”); interpre- of the administrative construction or sional at Micron 243 F.3d contrary legislation tation and did not act on 1311-12 &n. 10. to the provides appeal that the ‘one review on Sec- appeal, claim is on and authority. ‘subject retary’ question exercise of that of a to decision is valid 511(a).” Secretary’ under Id. CONCLUSION 1347. The board was not created reasons, foregoing petition Secretary operate For the and does not under for review is denied. authority delegated Secretary. to it 7101(a). contrary, To the See 38 U.S.C.

DENIED design purpose and congressional the clear No costs. body indepen- to an appellate create Secretary to decisions dent of the review MAYER, Judge, dissenting. Circuit agencies original ju- the various VA 7109(a) nor Because neither 38 U.S.C. ‘primarily risdiction. “The Board is an authorizes the Board of 38 U.S.C. 5103A appellate tribunal’ of the that decides opin to secure Appeals Veterans’ appeals from denials of claims for veter- Department of ions from Veterans Affairs I, benefits,” ans’ DAV 327 F.3d at 1346 (‘VA”) employees, and neither because (quoting Principi, Scates v. 282 F.3d provides exception requirement to the (Fed.Cir.2002)), 1366-67 and 7104(a) “[a]ll expressly grant authority must it to con- subject Secretary ... to decision sider evidence in the first instance. subject appeal,” shall be to one on review Secretary primarily relies on sec- is invalid. Section 7109(a)3 exception tion 20.901(a)1 is inconsistent with section appellate jurisdiction. the board’s Noth- 7104(a)2 appellants it “one because denies 7109(a), however, ing in section authorizes when, Secretary” review on augment ju- the board’s waiver, absent a veteran’s allows risdiction with consider new opin board to seek and consider medical obtained from within the professionals ions from care health tellingly VA. “In- Section entitled remanding within VA without the case to dependent opinions” provides jurisdiction, agency original or re that “the Board secure an advi- office, gional for initial consideration. Dis sory from one or more Sec’y abled Am. Veterans independent who are not (Fed.Cir. Affairs, 327 F.3d employees Department.” (Empha- 2003) (“DAV /”). “Together, [38 U.S.C.] sis 7104(a) §§ dictate that court, Secretary, rely acts on behalf and the en- making tirely the ultimate decision on claims and phrase on the nonessential “in ad- challenged regulation subject allows the board sion shall be to one appro- appeal Secretary.” to a “obtain medical from an review on priate professional health care in the Veterans 7109(a) provides: Health "Indepen- Administration of the 3.38 U.S.C. When, questions opinions (a) judg- Veterans Affairs on medical in- dent medical — Board, appeal expert opinion, volved consideration of an ment of the medical when, judgment, expertise Depart- in its such medical addition to that available within the ment, equitable disposition ap- is needed complexity of an is warranted the medical 20.901(a) (2004). case, peal.” controversy involved in an advisory opin- secure an medical 7104(a) mandates, pertinent part, independent Section ion from one or more medical a employees Depart- “All in matter under are which who not 511(a) subject section title is to deci- ment.” they within De- dition to that available are valid and therefore defer to them. contained in section partment” anything, If Congress’s lengthy delibera language This justify regulation. tion and carefully judi crafted scheme for grant authority; simply it distin- not cial regulations review of VA counsels for guishes preexisting opinions VA Brown, vigorous review.” Gardner v. congressional from the authorization for aff'd, (Fed.Cir.1993), request independent the board to 115, 121-22, 513 U.S. 115 S.Ct. opinions. plain reading A of the statute L.Ed.2d 462 (reasoning that “con grant authority allowing finds one gressional silence persuasive signifi lacks the board to secure consider medical cance, particularly where administrative opinions “independent medical ex- regulations are inconsistent with the con are perts employees who of the De- statute,” trolling regulation’s that “[a] partment,” which does not extend to age is no antidote to clear inconsistency from within the VA. statute”) (internal with a quo citations and Similarly, 5103A4 does not omitted). tations suggest To that congres 20.901(a). support Within the sional required is not to sustain a Claims Assistance Act of regulation simply because the regulation 106-475, Congress imposed Pub.L. No. long condones a standing practice eviscer specific number of and responsibili- duties Congress. ates the role of claimants, on the Secretary ties to assist as though “[E]ven set forth 5103A. For in- amendments [20.901(a) stance, requires to provide ] further the VA’s stated objective to prop- efficiency, striking the sensible erly evaluate a claim for benefits. Neither balance decreasing appeal pro- between 5103A(d), statutory language of section cessing competing public times and the legislative history nor the of the Veterans policy of protecting appellant’s right to 2000, permits Claims Assistance Act of process due is a matter for Congress, not delegate authority to obtain I, this court.” See DAV 327 F.3d at 1348. from within the toVA the Section is invalid because the board. Secretary has appel- countermanded the late role of congression- relies on the board without the historic requesting authority. board al

ions from within the But until VA. recent-

ly, regulations explicitly VA “were insulat- judicial

ed from review.” H.R.Rep. No. reprint- 100th Cong., 2d Sess.

ed in 1988 U.S.C.C.A.N.

“Many regulations aged nicely have

simply long because took so judicial length review. The regulations’ unscrutinized and un- existence, however,

scrutinizable does not

in itself form a presume basis for us to 5103A(d) requires, pertinent part, providing

4. Section shall include a medical examina- disability obtaining "[i]n the case of a claim for tion or a medical compensation, provided by the assistance such an examination or' (a) [duty under subsection assist] to make a decision on the claim.”

Case Details

Case Name: Disabled American Veterans v. Secretary of Veterans Affairs

Court Name: Court of Appeals for the Federal Circuit

Date Published: Aug 3, 2005

Citation: 419 F.3d 1317

Docket Number: 2004-7117

Court Abbreviation: Fed. Cir.