*1
how error could have amade difference in
outcome); Nicholson, Overton 20 Vet.
App. (any depriving error of “a meaningful opportunity
claimant effectively in
participate processing her claim ... must be considered
prejudicial”). PARRISH, Appellant,
James L. SHINSEKI, Secretary
Eric K. Affairs, Appellee.
Veterans
No. 09-0757.
United States Appeals Court of
for Veterans Claims.
Argued Jan. 2011. April 22,
Decided *2 with accordance by
tained 3.311(c), pertain- regulation a C.F.R. exposure Secretary’s ing to On November adjudication process. claim 16, 2010, the Board’s affirmed Court decision. timely sought reconsidera
Mr. tion, contending that 38 C.F.R. specifically the Under Secre permit § 3.100 does not (USB) delegate obli tary for Benefits upon him expressly placed are gations that 3.311(c). specific argu Although this by brief, it in his initial ment was not raised argument initial sufficiently related to his reconsideration, the Novem and grant Daniel whom Bergmann, R. with Glenn Because was withdrawn. ber 16 decision brief, Wedemeyer on the both D. previously has not been specific issue Bethesda, appellant. Maryland, for the Court, it was referred for by the decided Derr, A. A. with whom Will Lavinia Frankel by panel of the Court. decision Counsel; Gunn, Camp- Randall R. General Derwinski, 23, 25-26 Counsel; Rich- bell, and Assistant General below, forth For the reasons set Deputy Assistant General Mayerick, ard express desig the Court holds brief, Washing- Counsel, on the all of were responsibility to the USB stated nation of ton, D.C., appellee. for the limit the au §in does not USB’s KASOLD, Judge, and Before Chief designate thority under 3.100 DAVIS, Judges. MOORMAN (C P)& Ser and Pension Compensation Director) (C P to render vice Director & KASOLD, Judge: Chief 3.311(c), required by appeals L. Parrish to demonstrate James Parrish otherwise fails Veteran February Therefore, of a through part counsel in the Board’s decision. error the Board of will affirmed. decision of Veterans’ the Board’s decision be (Board) disability Appeals that denied I. FACTS pul- chronic obstructive compensation for duty from (COPD) on active Mr. Parrish served monary pulmonary disease In Au- January of in- 1957 to December fibrosis,1 claimed to be a result both disability com- he submitted gust because the exposure, service radiation for, alia, inter COPD and pensation claim connected. Mr. disabilities are not service in- from pulmonary fo- fibrosis argument initial to the Court Parrish’s claim, Mr. his service radiation. With adequacy of the Board’s cused on the letter August its deci- Parrish submitted of reasons or bases for statement opined that private physician who reliance on the from his regard sion with to its “certainly could have been decisions ob- his conditions procedure employed Dictionary (31st by Medical characterized lustrated 1. "COPD” is disorder ed.2007) "Pulmonary Dorland’s]. recurring [hereinafter persistent obstruction of bronchi or flow, bronchitis, of fibrous tissue in is the formation asth fibrosis” al air such as chronic ma, lungs. Id. at 712 and 1575. Il pulmonary emphysema. Dorland's caused to radiation.” Rec- requested December the RO (R.) Responding request ord at 504. to a from the C & Service a regard- decision Florida, Petersburg, regional from the St. ing the issue of service connection for *3 (RO), office the Defense Threat Reduction pulmonary COPD and secondary fibrosis (DTRA) Agency confirmed that Mr. Parr- ionizing to radiation exposure. The re- present Operation ish was quest PLUMB- included “information as required by BOB, atmospheric manual,” (a) a U.S. nuclear test ser- to wit: Pertinent service 1957, (b) information; ies conducted Nevada in but that circumstances, includ- exposed (c) he had not been ing measurable exposure; dates of description (d) radiation. The RO claimed; denied the claim a of disease age at time of (e) 2001 rating exposure, estimate; (f) November decision. dosage time lapse exposure between and onset of dis- In July Mr. Parrish submitted a ease; (g) gender, pertinent family history Disagreement Notice of and an article dis- (h) employment history; history of cussing possible health problems of veter- exposure to carcinogens known or radia- ans participated weapons who nuclear tion, (i) including smoking; and other rele- testing. The RO continued its denial of vant information. R. at 230-31. The C & the claim in a January 2004 Statement of subsequently Director forwarded this Board, appeal the Case. With his information to the Under Mr. Parrish submitted another letter from subject Health. The line of the memoran- private physician dated February dum reads: “Radiation Review—38 C.F.R. 2004. The matter was forwarded to the § 3.311.” R. at 222. development RO for more and an addition- al dose estimate from DTRA was obtained. In July the chief public health and a According (CPHEHO) to November 2007 letter from environmental hazards officer DTRA, began DTRA policy pro- responded new to the C & P Director’s re- vide worst-case radiation dose quest.2 sum, estimates to the CPHEHO noted that give the maximum benefit of the 16,1,1 doubt to Mr. Parrish’s dose estimates of reported veterans and to ensure that doses 3 rem were assumptions, the worst-case are not less than actual Although doses. and that although the Interactive Radioe- originally Parrish was found to pidemiological Program have is used to estimate radiation, nonmeasurable un- the likelihood that radiation exposure is policy, der the new DTRA disease,3 estimated that related malignant neoplastic Mr. Parrish exposed could not have been program did not cover non-neoplastic dose, to more than 16 gamma rem external pulmonary disease such as COPD and fi- dose, 1 rem external neutron 1 rem inter- brosis. The following CPHEHO noted the nal lung (alpha), committed dose to his and research findings: peer- There were no 3 rem internal committed lung dose to his reviewed documenting studies a statistical- (beta gamma). + ly significant association pulmo- between parties 2. The ap “Neoplastic” do not take pertaining issue with the means to “neo- parent delegation in this instance. plasm,” which is new and abnormal by Because the matter was not addressed growth; specifically growth a new of tissue argued by parties, Board or the Court will progressive. is uncontrolled and See West, not further it. address See Carbino v. at 1258. Dorland's (Fed.Cir. 1999) (noting 168 F.3d properly the Court declined to consider con appel tentions that were not raised lant). because, in- disability compensation denied and a dose re- or COPD nary fibrosis P Di- C & alia, some exposure; ter the CPHEHO’s to radiation sponse dose-re- significant complete on were based opinions research showed rector’s disease respiratory relationship Mr. Parrish’s sponse regard to historical data with diseases, but non-neoplastic pri- and other Mr. Parrish’s while mortality; noncancer affects smoking also not. Mr. opinion was physician’s vate these confirmed research additional timely appealed. possible noted that was findings but with a threshold a model
to rule out II. ANALYSIS *4 non-neoplastic rem for other high as 50 risks for diseases;4 lifetime noncancer Arguments Parties’ A. The to 100 rem were as adults people exposed Primary 1. Issue cancer, and for those for solid similar to children, the risks were as people exposed that 38 C.F.R. argues Mr. Parrish Parr- Noting that Mr. great. half as about 3.311(c) as the sole designates § the USB smoker, the CPHEHO ish was a former determina- authority to make the radiation research light in of the stated concluded 3.311, § that 38 required by tion unlikely that Parrish’s it was Mr. permit § him to 3.100 does not C.F.R. at- pulmonary fibrosis can be COPD and authority to make this deter- delegate the ex- ionizing radiation tributed to in-service argues further mination. Mr. Parrish R. at 219. posure. that, permitted, no assuming delegation is the C & Director P con- Subsequently, made. delegation has been such noted, inter ducted radiation review5 Secretary argues that the USB The alia, opinion, medical the CPHEHO’s he re complied with because DTRA, dosage estimates from worst-case through agent, matter his viewed the diag- were that Mr. Parrish’s conditions Director, directly C & P reports who ionizing years nosed 40 after USB, the USB has the au and that radiation, reported and that Mr. Parrish supervisory personnel thority designate years. The a smoker for 29 C having been & P Director to make find such as the C there was no opined & P Director applicable regulation law and ings under possibility that Mr. Parrish’s reasonable 2.6(b) §§ with 38 C.F.R. accordance are the re- pulmonary fibrosis COPD contends The further 3.100. ionizing sult of his that the issue of was settled Thereafter, a Sup- the RO issued service. (en West, Hilkert v. continu- Statement of Case plemental banc). argument, At oral appeal, claim. On ing the denial of the designated properly that the USB asserted hinged that the matter on explained Board the & P Director to make on decisions C the amount of radiation ex- knowledge of with the in accordance Veterans by Mr. Parrish. The Board behalf posure endured Although & Director’s 5. the C 4. CPHEHO discusses dose esti- 23, 2008, presume we that the (sv), dated June which is mates in terms of "sievert" C & P because the text of the date is an error equiva- unit of radiation absorbed dose opinion expressly refers to the Director's lent, producing the same bio- defined as that from the "July memorandum logic specified gray effect in a tissue as [CPHEHO], Secretary." writing the under high-energy x-rays; equals 1 sievert 100 rem. the Secre- Mr. Parrish nor R. at 220. Neither See Dorland’s discern, raised, the Court tary nor does prejudicial here. error Adjudication stated, Benefits Administration Succinctly Pro radiation exposure (M21-1MR). Manual cedures See M21- claims must be referred to the USB for MR, IV, ii, subpt. claimant, ch. pt. sec. C. consideration when a at a mini mum, exposed to ionizing radiation as B, This issue is discussed subsection a result of participation in the atmospheric below. testing of nuclear weapons, 38 C.F.R. 2. Additional Issues 3.311(b)(1)(i), developed subsequently argues Parrish also the Board disease, radiogenic C.F.R. provided an inadequate of rea- statement 3.311(b)(1)(ii), and, the radiogenic dis regard or bases its decision sons with ease became within period manifest First, to three additional issues. he ar- 3.311(b)(5). specified 38 C.F.R. If a gues that the & P Director inadequately condition is not recognized by regulation explained his decision that the Board such disease,” a “radiogenic the claim never when it erred did another deci- seek theless must be referred to the USB when Gober, sion in contravention of Stone a claimant “has cited compe submitted Second, argues he tent scientific or medical evidence that the *5 that the Board inadequately explained how claimed condition is radiogenic disease.” the & P C Director’s decision and the 3.311(b)(4). § 38 C.F.R. Mr. Parrish’s CPHEHO’s probative are more was claim forwarded pursuant to the USB private physician’s than his Fi- opinion. (b)(4). subsection to nally, argues he the Board’s state- 3.311(c) forwarded, § Once dictates the inadequate ment is because there is no process. thereto, Pursuant the USB is evidence of record that the C & Director required to evaluate the claim with refer expertise has medical or training. specific ence to criteria laid out The that the Board’s contends 3.311(e). Hilkert, § As noted in 12 Vet. explained decision is and is not adequately App. at .because the USB’s consider clearly erroneous. He reasons that ation of the claim heavily “relies on medi explained Board the CPHEHO and cal and scientific findings analysis, and the C & P Director provided detailed re- may request advisory [USB] ports upon regulatory based correct crite- from the Under Secretary for Health.” ria, rely and the Board did not on the C & decision, The USB then with forwards P Director’s decision as medical evidence. rationale, supporting adjudi to the RO for These issues are subsection claim. § discussed of the cation 38 C.F.R. C, (d). below. and The C & P Director is not men regulation tioned in the having as a role in
B. Decision Process Under
process,
which
the basis of Mr.
forms
38 C.F.R.
3.311
primary
Parrish’s
argument.
are
disability compen
Veterans
awarded
1. Hilkert is
Controlling
not
resulting
inju
sation
disabilities
from
ries or diseases that
Contrary
contention,
are incurred in or
Secretary’s
aggravated by
Hilkert,
§§
service. 38 U.S.C.
supra,
is
binding
not
or settled
disability
1310. For
compensation
authority
may
on whether the USB
dele-
upon
claims based
in-service radiation ex gate,
delegated, authority
or has
to the C
posure,
has established a
P& Director to
review
render the
special adjudication
3.311(c).
process.
See 38 determination called
Al-
(2010);
Stone,
C.F.R.
3.311
also
14 though
see
Hilkert
a statement
includes
119; Hilkert,
Vet.App. at
supra.
“properly
the RO
referred the claim to the
adjudicative
within
ry
personnel
or
and Pension for
Compensation
his/her
Director of
functions as
USB,”
perform such
jurisdiction
to
on behalf of
who acted
review
2.6(b)(1)
authority
assigned.”
to dele
be
38 C.F.R.
Vet.App. at
Indeed,
on those mat-
to act
in the case.
not an issue
gate was
authori-
the realm of the USB’s
developed,
or
ters within
argued
was not
the issue
or
necessary
delegated
supervisory
further
to
ty
not
is
its resolution
designated by the
adjudicative personnel
n. 15
case. See id.
outcome
USB,
J.,
(noting that the
to wit:
dissenting)
(Steinberg,
challenge
expressly declined
appellant
(a) Authority
delegated to the Under
authority to the
delegation of
the issue of
superviso-
Secretary for Benefits and to
and that the issue was
& P Director
within the
ry
adjudicative personnel
decision). The
by the Court’s
addressed
Ad-
jurisdiction of the Veterans Benefits
referral,
proper
of a
passing mention
by the Under
designated
ministration
therefore,
that does not settle
is dicta
findings and deci-
Secretary,
to make
Immigration and Customs
issue. Jama v.
laws, regula-
applicable
under the
sions
335, 352 n.
Enforcement, 543 U.S.
instructions,
tions,
as
precedents,
(“Dictum
694,
397 ther, ty although to make the radiation determination Hilkert is not controlling in delegated. above, not be further In further this case as discussed the Court support argument, of this Mr. Parrish notes that Hilkert authority is cited as 3.321(b), § that a provision *7 (Fed.Cir.1988))). As head of the C & P the P RO forwarded the matter to the C & Service, the C & P Director is an appropri review, Director for who acted on behalf of provide opinion. ate official to such an USB). Secretary’s the awareness And, above, Secretary’s as noted the inac that the P making C & Director has been regard directing any change tion with to to determination, the radiation as demon acceptance the M21-MR reflects his by Secretary litigat strated cases the has procedures contained therein. Bob Cf. Court, inaction, ed before the and his dem Univ., supra. Jones Secretary’s onstrate’s the of approval the Contrary argu- to Mr. Parrish’s second process, including delegation the of author 3.311(c) ment, history regulatory the States, ity. Bob Jones Univ. United Cf. impliedly prohibit delegation. does not 574, 600-01, 2017, 461 U.S. 103 76 S.Ct. correctly Mr. Parrish that *8 ap- there is no evidence the record on v. Ah properly, (citing ed United States corresponding delegation that a mem- peal Cir.1976) (8th rens, 781, 530 F.2d 786 delegates has been executed that (2d orandum U.S., 306, v. F.2d 309 Cir. Lesser 368 P authority to the C & Director. Mr. Masusock, 1966))); 1 States v. United P argued (same); that the C & 32, Parrish therefore 36-37 see U.S.C.M.A. Derwinski, 103, ul- 1 Fugere Vet.App. Director’s radiation determination was v. also (1990) (“Advancing argu- 105 different tra vires. 21, Moreover, (Feb. 1995). Fed.Reg. 7. benefits director" and "chief medi- 9627 "Chief "Department Veterans Benefits” and for the "un- of cal director” are former titles “Department Surgery” secretary of Medicine and der for benefits” and “under sec- health,” "Veterans Benefits retary respectively. titles are former titles for the The only and "Veterans Health Ad- changed to their current form Administration” were ministration,” respectively. statutory 60 match the correct titles. See
399 stages appellate of record that the C & P Director merits successive has expertise training. the medical or process does not serve the interests of practice Such a hin- parties or Court. Duty The Board’s To Provide decision-making process ders the and rais- Adequate Rationale and the specter piecemeal of es undesirable Court’s Standard Review of litigation”). Decisions of the Board shall be applicable based on all provisions of law Moreover, essentially ig- Mr. Parrish regulation, and the pro Board shall authority nores the broad to act on mat- vide a written statement of reasons or jurisdiction ters within the of the Veterans bases for its conclusions. See 38 U.S.C. Benefits Administration that has been del- (d)(1). 7104(a), § The Board is not re egated regulation by quired to all discuss of the evidence of any persons designated by USB record, see Dela v. Principi, Cruz 15 Vet. 3.100(a). In the USB. See 38 C.F.R. 143, (2001), App. 149 but it should not context, specific requirements this of reject evidence favorable to the claimant inapposite, VA Directive 0000 are as evidence, discussing without Mey see delegation, opposed it addresses to des- Brown, 425, (1996), er Vet.App. v. 9 433 ignation. Although the M21-MR does not and its overall statement “must be ade specifically designate the C & P Director quate to enable a claimant to understand determination, to render the radiation precise decision, basis the Board’s clearly places responsibility for the radia- as well as to facilitate review Service, tion determination with the PC & Brown, Allday v. Vet.App. Court.” implicitly designates which the & P Di- C (1995). Moreover, the Board find authority delegated rector to exercise the pro unfavorable medical more 3.100(a). sum, proper we find a long bative than a favorable one as as it 3.100(a), and, of articulates understandable and valid rea M21-MR, proper designation in the doing Nieves-Rodriguez sons for so. delega- the C & P Director to exercise that Peake, (2008); 22 Vet.App. see authority. Accordingly, tion of Mr. Parr- Nicholson, also Stefl ish’s contention that the C & Director’s decision is ultra vires is without merit. findings regarding The Board’s Remaining Appeal C. Issues on probative opinions, value of medical as well support finding disability record does not Mr. Parr- as its ultimate whether a connected, argument pro- subject ish’s other that the Board is service to the an inadequate “clearly vided statement of reasons erroneous” of review. standard Brown, In support argument, bases. of his Mr. See Owens v. (1995) (Board’s assignment greater pro asserts the Board relied inadequately explained on an weight decision of bative to one medical than subject “clearly & P Director under 38 C.F.R. to another is erro 3.311(c)(1), Stone, review); contravening supra, neous” standard of see also Russo *9 (2) Brown, (1996) 46, inadequately explained how the 9 Vet.App. (noting connection, finding & Director’s decision and the CPHE- that a of service or lack thereof, opinion probative finding HO’s are more than his is a of fact reviewed under (a) private physician’s opinion “clearly because the erroneous” standard of re are, view). themselves, opinions finding clearly both A erroneous when explained “ (b) it, inadequately ‘although support there is no evidence there is evidence to (1) dose, in probable The terms of dose on the entire evidence reviewing the court in type, and duration as a factor and firm conviction rate is left with the definite ” disease, taking into account inducing has been committed.’ that a mistake Derwinski, 49, dosimetry in Vet.App. any known limitations Gilbert (1990) in its measurement or Gyp- employed States v. U.S. devices (quoting United Co., in methodologies employed its esti- 333 U.S. 68 S.Ct. sum (1948)); mation; Padgett v. Ni- L.Ed. 746 see also cholson, 147-48 (2) sensitivity of the in- The relative induction, by ionizing tissue to volved Requirements 2. Substantive radiation, specific pathology; of Decisions Under 38 (3) gender pertinent The veteran’s § C.F.R. 3.311 family history; 3.311(c)(1) requires a cer- Section also age expo- at time of The veteran’s of detail in decisions made degree tain sure; provides pertinent part: thereunder. It in time-lapse exposure between (1)[T]he Secretary for Benefits Under disease; of the and onset shall consider the claim with reference exposure The extent to which to ra- (e) paragraph in specified to the factors diation, carcinogens, or other outside of may request of this section and an advi- develop- service have contributed to sory medical from the Under ment of the disease. Secretary for Health.
(i) If after such consideration the Under 3.311(e). If ulti 38 C.F.R. the USB Secretary for Benefits is convinced mately “is no rea recommends there sound scientific and medical evidence possibility that the veteran’s dis sonable supports the conclusion is at least as exposure ease resulted from radiation likely the veteran’s disease result- service,” 3.311(c)(1)(ii), see 38 C.F.R. service, exposure ed from to radiation in required to deci USB is not discuss Secretary the Under for Benefits shall (e) sion each of the subsection factors. jurisdic- regional so inform the office of Hilkert, Rather, at 149. writing. Secretary tion in The Under factors should be considered and consulted for Benefits shall set forth the rationale point as a at 149-50. of reference. Id. conclusion, including this evalua- Adequately 3. The Board’s Decision is tion claim applicable under the Explained Clearly and is Not (e) specified factors paragraph Erroneous section. (ii) If the Under for Benefits Stone, supra, on relies possi- determines there is no reasonable P Di proposition for the the C &
bility that the veteran’s disease resulted rector’s decision here lacked sufficient ex service, from radiation why planation as to there is no reasonable Under for Benefits shall so possibility that Mr. Parrish’s conditions re regional jurisdiction inform the office of sulted from radiation service. in writing, setting forth the rationale for Stone, provided the radiation decision this conclusion. cursory and lacked dis USB 3.311(c)(1). 3.311(e) factors. Applicable See 38 C.F.R. cussion of (e) Specifically, factors under stated: have subsection are the follow- USB “We ing: a medical from the Under received
401 Health], years with which we 29 and Mr. Parrish also was not Secretary [for unlikely diagnosed lung that the with his conditions until that advises it is 40 agree, years exposure. and anal after carcinoma of the rectum in-service The C & veteran’s Director, concluded, then, P that ionizing from his there is area resulted Stone, Vet.App. possibility in 14 no reasonable that Mr. Parrish’s service.” further noted that conditions resulted from to in- at 120. Court of the Board’s service radiation. is no articulation “[t]here finding opinion the [USB’s] reasons Although not highest stated with the convincing, but rather a mere restatement degree of precision, the C & Director’s opinion conjunc of in medical] USH’s [the decision is understandable and the Board presumptive of service tion with the denial did not commit error when it relied on it. connection.” Id. Nicholson, Vet.App. See McClain v. 21 (2007) in (noting although In contrast to the circumstances that clari Stone, P ty certainly preferred, the Board here noted the C & is it “is not and (1) every Director’s discussion of Mr. Parrish’s cannot be demanded in instance or in- exposure history, finality delayed in-service radiation would forever be pending (2) sex, data, race, cluding age, perfection draftsmanship”); dose rem see also (3) data, Gober, family history personal and of Maxson 230 F.3d (Fed.Cir.2000) cancer, history, 29- that postemployment (recognizing lengthy and (4) year history smoking, periods symptoms CPHE- time without treat claim); report, statistically weigh against which found no ment can Polovick HO’s (2009) (not Shinseki, Mr. Parr- significant association between response ing ish’s conditions and dose to radia- the Board not award benefits (5) exposure, upon pure tion and the fact that COPD when the award would be based This is pulmonary diagnosed speculation). particularly fibrosis were so be years ionizing ultimately after in-service radiation ex- cause it is the Board that is Thus, required by explain & P its posure. the C Director’s deci- statute decision- 7104(d)(1); see, cursory lacking making. e.g., sion was neither nor 38 U.S.C. Brown, discussion, the Board not err in did Gabrielson v. (1994) Board,
relying
(discussing
on it. Mr. Parrish also fails to
that it is the
examiners,
point
duty
that the
medical
that has the
otherwise
evidence
C
& P Director’s decision failed to substan-
discuss favorable evidence
a statement
3.311(c)(1)
bases).
tively comply with
or our
of reasons or
Hilkert,
holding
supra.
Mr.
Similarly,
unsupported
we find
Although Mr. Parrish asserts that
the Parrish’s assertions
the Board inade-
why
explain
quately explained
stated information still fails to
ade-
both the CPHE-
& P Director’s
quately the C & P Director’s ultimate deci- HO’s
sion,
private physician’s
ignores
meaning
outweighed
he
the commonsense
decision
fact,
report.
explained
of each stated
and that the C & P
As we
Nieves-Rodri-
naturally
guez,
Director’s conclusion flows
from
and as was noted
the Board be-
instance,
low,
meanings.
the sum of those
For
the foundation and rationale of med-
crucial
the Board
the C & P Director noted that
ical
are
when
statistically sig-
compares
opinions
found no
medical
and assesses
report
CPHEHO
Id.
It
weight
provided
nificant association between Mr. Parrish’s
to be
thereto.
conditions,
factor,
axiomatic that a medical examiner must
smoking is a
in or-
smoked for be informed of the “relevant facts”
Parrish admitted
he
*11
opinion provided
than
opinion.
a
Id. at bative
the medical
probative
der to render
Ac-
by
private physician.
Mr. Parrish’s
cordingly,
weighing
the Board’s
of the
noted that Mr. Parrish’s
The Board here
fa-
medical evidence is understandable and
essentially opined that
private physician
judicial
Allday,
eilitative of
review. See
by
were caused
Mr. Parrish’s conditions
And,
ap-
supra.
based on the record on
expo-
including
factors
radiation
several
peal,
findings
plausible
the Board’s
are
smoking, and stated that he was
sure and
clearly
not
erroneous. See Russo and Ow-
actual radiation
not aware of Mr. Parrish’s
Gilbert,
ens,
supra;
supra.
see also
both
contrast,
the Board
exposure count.
opinion
that
was
explained
the CPHEHO’s
III. CONCLUSION
in-
the worst-case estimate of
upon
based
foregoing,
of the
Upon consideration
exposure
radiation
and that
service
9, 2009,
February
Board’s
decision is AF-
Parr-
unlikely
CPHEHO found it
that Mr.
FIRMED.
by in-
lung
ish’s
conditions were caused
exposure. Although
radiation
service
DAVIS, Judge,
filed an
argues
that
the Board did
concurring in the result.
why
the amount of
explain
knowledge of
DAVIS, Judge, concurring:
particularly important,
radiation is
it is
commonly
degree
that
understood
I
judgment
While concur with the
a
radiation
is
factor for consider- majority opinion,
separately
I write
to ex-
assessing
relationship
ation when
of press my
majority’s
disagreement with
Moreover,
exposure.
disease to radiation
analysis and resolution of Mr. Parrish’s
regulations require
that,
VA
if
argument
even
the USB had
3.311(a),
estimates,
dose
see 38 C.F.R.
delegation
to make a
to the &C
private physician
and Mr. Parrish’s
essen- P Director to conduct the radiation deter-
tially said that he could not render an
3.311(c),
required by
mination
38 C.F.R.
accurate
without such information.
argues
he never did so. Mr. Parrish
that
that
there is no evidence
the record
argument
Mr. Parrish’s final
is that the
designating
memorandum
the C
explain why
Board did not
it found the C
executed,
required by
& P Director was
proba
& P Director’s decision was more
II.B.3,
policy.
majority
VA
See
ante. The
private physician’s opinion
tive than his
“it
... not
surprising
states:
is
that
that
when the record contains no evidence
delegation memorandum is not in the rec-
qualified
the & P Director is a
medical
...
appeal
simple
ord on
and the
fact that
professional.
Secretary,
As noted
such a memorandum is not
the record
the C & P Director’s decision is not medi
that
presumption
fails to overcome the
Rather, it
per
cal evidence
se.
is a deci
government
generally discharge
officials
upon
is
sion
based
factors
their duties in accordance with the law and
3.311(e),
advisory
as well as an
medical
governing regulations.” Ante at 398.
Hilkert,
opinion.
at 149
that,
(recognizing
presumption
regularity
because the decision un
“There is a
on
presumed
govern
der
is to be based
sound under which
evidence,
advisory
properly discharged
scientific
medical ment officials ‘have
” Ashley
opinion may
requested).
be
The Board
their official duties.’
v. Derwin
ski,
(quoting
explained
the C & Director based
Found., Inc.,
on
decision
the CPHEHO’s medical United States
Chem.
(1926)).
opinion, which
found
provides may delegate that the USB
responsibility to (Ap- the C & Director” 7)
pellant’s Brief at and that “the Secre-
tary nothing cites in the indicating record
that the delegated USB his responsibility
under section to the P Di- C & rector in this (Appellant’s case” Reply FREEMAN, Petitioner, William E. 4) (emphasis Brief in original). Yet the Secretary, response, SHINSEKI, Secretary Eric K.
merely cited to 38 C.F.R. 3.100 stat- Affairs, of Veterans ed that the general USB “has the authori- Respondent. ty designate supervisory personnel findings applicable [VA] make under law No. 10-1462. regulations,” and that the P Di- C & reports directly rector to the USB. Secre- United States Court of Appeals tary’s Brief at 6. Secretary’s brief for Veterans Claims. would have the appropriate been time to April point the Court’s and Mr. Parrish’s atten- tion applicable provision of the
M21-MR, effectively which designates the
PC & Director to exercise the 3.100(a).
delegated § It would have
also been appropriate in compliance
with Rule 30 of the Court’s Rules of Prac-
tice and Procedure for the Secretary to file
a letter of supplemental authority with the notes 38 C.F.R. promulgation Thus, pro- of 3.311. addressing rating extrasehedular determi- employed cedures for a radiation claim nations, decisionmaking vests in either the under 3.311 in Hilkert are informative of Director, reflecting or the & P USB C practice VA’s common in adjudicating authority knows how to vest these claims. to act in more than one official when he so Second, Veterans Benefits Administra chooses. tion’s M21-MR procedure establishes the Mr. Parrish’s observations in support of for adjudicating claims under 38 C.F.R. argument ignore his first at least two facts § 3.311. The manual states that the RO that demonstrate the did not should forward claims to the C & Ser restrict broad of the USB vice when the three requirements of 38 3.100(a) §in granted designate the C & 3.311(b)(1) C.F.R. are met. It also (or supervisory adjudi P Director other states that the & P responsi C Service is personnel jurisdiction cative within the providing ble for the RO with an Administration) the Veterans Benefits to recommending either that the claim be make the radiation required determination M21-MR, IV, granted or denied. pt. See 3.311(c). First, §in there has been a ii, C, 23-24; subpt. ch. sec. see also longstanding practice of the & P Di C Derwinski, Brannon v. 1 Vet.App. rector making decisions under 38 C.F.R. (1991) (“ ‘[Cjourts may judicial take notice 3.311(c), as reflected in our caselaw over notoriety, of facts of universal which need past years. at least the See Davis proved, general not be and of whatever is Brown, (noting ” ly jurisdictions.’ known within their April the RO referred the (quoting Licensing Corp. Body B.V.D. Director); claim to the & P see also Inc., F.2d, 727, Design, Action Hilkert, 12 (noting
Notes
notes the first (noting L.Ed.2d 157 Congress’s that proposed version of vested deci- awareness of an agency’s administrative sionmaking in the then-titled chief medical regulatory 12 interpretation years director, response but in to comments that Congress’s failure to act on bills proposed subject regulations ap- on the referral to the chief medical director interpreted provides support peared rating jurisdiction that to transfer from Congress ac quiesced, agreed, Department and therefore with the the then-named of Veterans agency’s regulatory interpretation). Department Fur- to Benefits of Medicine Parrish cites Initially we note that Mr. amended provision Surgery, indicating he nothing in the record to rested with clarify the final decision that below, that it reason this issue or raised director and chief benefits the then-titled record; thus it was ably by was raised advisory opinion request could that he develop not error for the Board to medical director. See from the chief West, 12 Pond v. address this issue. See 1985).7 34,456 34,452, (Aug. Fed.Reg. (1999) (Board required to Vet.App. 341 is of is an accurate statement Although this reasonably raised be develop all issues 3.311(c), it fails to show history of Brown, low); Talbert v. of any part on the intent (1995) (noting that the Board must responsibility of of- prohibit designation reasonably raised issues and is not address of Department are within the ficers who prog obligated to “conduct an exercise the & today, such as Benefits Veterans nostication”). Accordingly, it also is not Rather, history indicates P Director. that a memorandum surprising clarify intended to only that the as it was not appeal not in the record on is jurisdiction that to decide veterans-bene- below, that simple and the fact an issue appropriate with the fits matters remained a memorandum is not the record such administration. that presumption to overcome the fails P Director Designation C & discharge government generally officials of duties in accordance with the law and their that if the Mr. Parrish contends even Shinseki, governing regulations. Rizzo authority delegate authori- USB had (“‘[T]he doc 580 F.3d to make the ty to the C & Director that presume ... allows courts to trine required by determination regular regular, the bur appears what 3.311(c), never did so. At oral the USB shifting den to the attacker to show that di- argument, Mr. noted VA ” “nothing in contrary,’ stating “Delegations of Authori- rectives entitled precedent presump limits the Court’s ty” policy authority may establish VA matters”) (quoting But procedural tion to only through delega- written delegated be 1337, 1340(2001)); Principi, 244 F.3d ler v. memoranda, delegat- if tion not otherwise Comm’r, F.2d Borg-Warner Corp. v. See, regulation. e.g., ed statute or VA (Under (7th Cir.1981) pre (2009), Directive 0000 available VA regularity and in the absence sumption http://www.va.gov/vapubs/search_action. contrary, it is indication to the noted that cfm?dType=l. He further delegat presumed has been