Jose A. Sanchez-Benitez, Claimant-Appellant v. Anthony J. Principi, Secretary of Veterans Affairs

CONCLUSION evidence, on substantial

Relying composite applicant’s found

Board and that geographic primarily

mark was mark would mis- viewing the

consumers originated goods

takenly believe Therefore, refusal

Venice, Italy. grounds mark on

rеgister applicant’s decep- geographically primarily is misdescriptive is

tively

AFFIRMED.

COSTS its own costs. party

Each shall bear SANCHEZ-BENITEZ,

Jose A.

Claimant-Appellant,

Anthony PRINCIPI, Secretary of J. Affairs, Respondent-

Appellee.

No. 00-7099. of Appeals, States Court

United

Federal Circuit.

Aug. (“Board”) Appeals

the Board of Veterans’ of his claims for service connection for a neck rating increased for a West, low back claim. Sanchez-Benitez v. (1999). 13 Vet.App. 282 We dismiss-in- part, vacate-in-part, and remand. I Mr. Sanehez-Benitez served in the n Army for years, July fifteen from 1979 to July preexisting 1994. No conditions were noted on his August entrance exam. 1989, he sought medical treatment for what his service medical records dеscribe as neck months’ two duration with history no of trauma. A cervical spine x- ray taken at that time was normal. 1992, January Mr. began Sanehez-Benitez complaining of low back pain lifting after heavy equipment. His medical records in- ongoing dicate complaints low back discharge. until his At the time of his from separation ser- Blauhut, Paralyzed vice, Linda E. Veterans of Mr. Sanehez-Benitez submitted a America, DC, Washington, argued for claim for service connection for a “low appellant. claimant her on the brief injury” beginning January back was Michael P. Horan. “neck pain” beginning August 1989. (“RO”) Regional of the Depart- Office Gregory Jaeger, Attorney, T. Trial Com- (“VA”) Wichita, ment ‍‌‌​​​‌‌​​​‌‌​‌‌‌​‌‌‌​​‌​‌​​‌‌‌‌​​‌‌​‌‌​​‌‌​‌​‌​​‍of Veteran Affairs Branch, Division, Litigation mercial Civil Kansas, granted service connection for the Justice, DC, Department Washington, injury” “lower back and rated it at 10 argued respondent-appellee. for himWith Cohen, percent disabling. Service connection for on the brief were David M. Di- rector, Lester, Jr., however, the “neck pain,” Harold D. Assis- was denied tant Director. counsel Of on the brief on the lack a patho- based of evidence of Hipolit, Deputy were Richard J. Assistant logical neck disorder. Mr. Sanchez-Beni- Counsel, Adelman, General and Martie At- appealed tez the decision on both claims Affairs, torney, Department of Veterans hearing and was afforded a in December Washington, DC. 1994. taking testimony After from Mr. San- MAYER, LOURIE, Judge, Before Chief chez-Benitez, hearing officer ordered a CLEVENGER, Judges. Circuit examination, place medical which took CLEVENGER, Judge. Circuit January Although x-rays turned up “normal” this medical examina-

Jose A. appeals Sanehez-Benitez gave Mr. Sanehez-Benitez an account by Appeals the decision the Court of (“Veterans Court”) history to the medical examiner of his Veterans Claims 29,1999, affirming December the denial back and neck He also informed the underwent a Mr. also on-the-job injury that Sanchez-Behitez of аn physician July 1996. The or- large when a examination spinal allegedly place took his neck. cer- dropped on noted three sets of thopedic metal examiner bumper re- examiner the medical x- Consequently, x-rays: January spine vical (2) muscle diagnoses of “lumbar normal; corded early rays, which were (for back-pain) and “[histo- the low strain” “very which showed July x-rays, 1996 area with trauma to the cervical ry of on the anterior early osteophyte small and (fоr Mr. pain). the neck pain” residual of-C6,” disc normal aspect good spaces, rat- back.disability low Sanehez-Benitez’s foramina,” and “no arthritis or evi- “neural per- ing subsequently was increased trauma”; July the late dence of and However, hearing officer. ser- cent “en- x-rays, which found to be were again was pain for neck vice connection x-rays tirely spine normal.” The lumbar denied. osteophytes on L4 and consistently showed 1996, the Board determined June conducting physical After a examina- L5. was nec- development that further appeal orthopedic examiner determined both the neck and low back essary for to car- that Mr. Sanchez-Benitez was able claims, addi- and remanded the case for ry job, the duties of and concluded out his testing and examinations. tional medical the radio- physical findings “[t]he that an requested the Board Specifically, not reveal a definite or logic findings do “by orthopedist opinion provided in the neck specific complaints cause of the relationship the likelihood of a regarding Therefore, I am not and low back. able symptomatology the neck noted pain chronic complaint correlate well the spine in service and current cervical findings.” with the clinical pathology.” 1996, August magnetic resonance neurological ex- During subsequent (“MRI”) on Mr. image was conducted San- July Mr. amination Sanchez-Beni- (neck) cervical and lumbar chez-Benitez’s history episodic low again provided tez (low back) MRI spine. report showed stemming from and neck pain, back bulg- disc mild degenerative disease with injury. alleged 1983 in-service up nega- came ing spine, the lumbar but neck, found regard to the the examiner to the cervical area. The regard tive with C5-C6, at discs no evidence of tenderness electromyogra- August report VA tone, “bulk, and normal radiculopathy, (“EMG”) veloci- phy and nerve conduction musclе power” with no evidence of [and] (“NCV”) ty studies of Mr. Sanchez-Beni- or motor weakness. As to the low wasting no definite tez’s neck and back showed- back, at the examiner found tenderness abnormalities. L5-S1, decreased sensation of discs some After all the examinations were com- thigh, pain upon the left and low back pleted, prepon- the Board found that the bending. The examiner noted that cervi- against Mr. derance of evidence was early July spine x-rays perfоrmed cal claims for- service con- Sanchez-Benitez’s narrowing slight minimal 1996 showed nection for a neck and an en- C2-C3, at discs reversal of lordosis rating hancement in the for his low back minimal spine x-rays that lumbar revealed disability, disability. Concerning the neck changes narrowing degenerative orthopedic the Board noted the VA exam- at L4-L5 and L5-S1. The spaces discs radiolog- iner’s statement that clinical and ultimately diagnosed slight re- examiner or cause C2-C3, findings ic did not reveal source at lumbosacral versal lordosis complaints pain, of the veteran’s of neck sprain, radiculopathy. and left L5 findings nor did the clinical substantiate concluded that the record failed show a the veteran’s belief that his neck connection between the in-service neck secondary pain. to lower back In the ab- trauma incident and Mr. Sanchez-Beni- sence of evidence that Mr. Sanchez-Beni- Thus, tez’s current neck the Veter- tez had a neck thаt was shown ans Court stated “plausible that there is a by medical records to be related to an in- basis” in the record for affirmance of the injury, service the Board denied his claims intensely Board’s fact-driven denial of ser- for service for a disability. connection vice connection for the neck condition. Regarding the low back sure, (unlike To be the Veterans Court Board evaluated the veteran’s claim under Board) did state that “pain with- 4.71a, § Diagnostic 38 C.F.R. Code 5293 diagnоsed out a or identifiable underlying (“DC 5293”) (intevertebral syn- disc condition, malady or does not in and of drome). The Board considered the ten- itself constitute a disability for which ser- experienced by derness and the discomfort vice granted.” connection be Al- physical the veteran examina- though Mr. Sanchez-Benitez understands rating higher but concluded that a that the Veterans Court’s statement about percent than 20 was not warranted. so, “pain alone” is at most an alternative hоld- doing it stated that “[t]he nature of the original injury ing has been to the reviewed and the Veterans Court’s —alternative functional that can be attrib- assessment of the medical evidence as de- uted to or weakness has taken been scribed above—he urges this court to de- account,” (ad- citing § into 38 C.F.R. 4.40 appeal solely cide his on the issue of dressing functional loss and limitation of whether the alone” statement is a use) due motion to on and 38 C.F.R. correct statement of law. § (requiring inquiry 4.45 into weakened Regarding the low back the movement, fatigability, excessive incoordi- Veterans Court found that the Board’s de- nation, movement, pain on and limitation complied cision had with the mandates of motion). of an intervening precedential opinion issued appealed Mr. Sanchez-Benitez by the VA addressing General Counsel DC respect Veterans Court. With to his claim 5293. The Veterans Court further found for service connection pain arising “exceptiоnal no evidence of or unusual” injury, an in-service neck the Veterans that circumstances would render the sche- err, held that Court the Board “did not Hence, rating inadequate. dular the Vet- case, the facts in denying [in] erans Court affirmed the Board’s of denial grant of particu- service connection.” In both of Mr. Sanchez-Benitez’s claims. lar, the Veterans Court affirmed the finding Board’s factual that “there was not II adequate ‍‌‌​​​‌‌​​​‌‌​‌‌‌​‌‌‌​​‌​‌​​‌‌‌‌​​‌‌​‌‌​​‌‌​‌​‌​​‍any medical evidence of present jurisdiction hаve We circumscribed to to the appellant’s related ser- of review decisions the Veterans Court Board, vice.” The as well as the Veterans 7292(a). § pursuant to 38 U.S.C. We must Court, concluded that the 1995 reference law, questions decide “all relevant in- “history to of trauma spine to the cervical cluding interpreting constitutional area with pain” residual Mr. Sanehez- statutory provisions.” 38 U.S.C. Benitez’s medical records did not establish 7292(d)(1) 1999). than (Supp. V Other a medical connectiоn between the alleged matters, determinations as to factual we in-service and Mr. Sanchez- must hold unlawful and aside currently experienced regu- Benitez’s set short, interpretation the Board and the Veterans lation or find to we be reverse it even may not appeals “(A) and abuse capricious, arbitrary, sitting it that had been discretion, though accordance convinced or otherwise (B) fact, to constitutional law; contrary trier would have as the with ' (C) immunity; or privilege, differently. right, power, evidence weighed jurisdiction, authori- statutory permissible excess there two views are Where limitations, a in violation of statu- or ty, or evidence, choice the factfinder’s of the (D) observance or without tory right; clearly errone- them cannot However, Id. by law.” required procedure ous. (A) a challenge “may not review we 573-74, (emphasis at 105 S.Ct. Id. (B) determination, challenge or factual omitted). Where, as and citations added the facts applied as regulation a law or here, affirmance of Court’s Veterans 38 U.S.C. particular case.” expressly based the Board’s decision (1994). 7292(d)(2) ap- record on upon “consideration matter, Mr. San preliminary As a reply original peal, appellant’s contends chez-Benitez brief, briefs, argu- and oral Secretary’s basis” description “plausible of a Court’s say that its parties,” we cannot ment of misapplication of review was a of standard “plausible was а ba- conclusion that there forth standard set “clearly erroneous” the in record the Board’s decision” sis the for (1994 7261(a)(4) Supp. V & in U.S.C. 38 “clearly erro- of the misapplication was a 1999). However, City in Anderson of neous” standard review. 564, 105 S.Ct. City, 470 U.S. Bessemer (1985), 1504, Supreme the A 84 L.Ed.2d 518 “clearly for erroneous” interpreted regard to Mr. Sanchez-Benitez’s With review of a lower appellate purposes his current for service connection for claim analogous situation fact-finding, an court’s urging that we we confront his pain, of a Board review to the Veterans Court’s reject the view of Veterans Court the decision: diagnosed or identi- “pain without phrase the meaning Although condition, does underlying malady or fiable immediately “clearly erroneous” is not disability constitute a not in and of itself principles gov- general certain apparent, may grant- be service for which connection appellate erning the exercise Sanchez-Benitez, аt Vet.App. 13 ed.” findings of a to overturn power court’s veterans, entitlement to For basic dis- from our may be derived district court from two stat- ability compensation derives principles of these cases. The foremost 38, utes, title 1110 both found in sections finding ‘clearly is errone- “[a] ... is that relating to wartime and 1131—the former is evidence to although when there ous’ re- compensation and the latter disability it, reviewing court on the support peacetime disability compensa- lating to with the definite evidence is left entire provide compensa- Both tion. statutes that a mistake has firm conviction words: following beginning with plainly committed.” This standard been in- disability resulting personal from “For to reviewing entitle a court does or disease contracted jury suffered of fact finding of the trier reverse §§ duty....” U.S.C. line it convinced simply because is (1994). Thus, to for a veteran order the case different- have decided would compensation to un- qualify for entitlement court’s account ly.... district If statutes, prove the veteran ‍‌‌​​​‌‌​​​‌‌​‌‌‌​‌‌‌​​‌​‌​​‌‌‌‌​​‌‌​‌‌​​‌‌​‌​‌​​‍must der those light plausible is evidence one that has disability, of a entirety, the court existence viewed in its record movements, normal injury body working joint from a disease or that oc- resulted duty. in the line of disability, curred or muscle then experienced otherwise is not compensa- “pain” refer to regulations The VA ble disability. connection with the assessment of the ex- eompensi- which a veteran be tent to Mr. Sanchez-Benitеz presents his bly disabled. These references are found challenge alone” statement Subpart “Disability Ratings” relating B brief, two opening iterations. he System.” For Musculoskeletal “[t]he suggests currently that a veteran suffering (2000), relating § 4.40 example, 38 C.F.R. pain, but without allegation of “[fjunetional loss,” that the extent states injury in-service or disease to which the “may due to pain, of functional loss be attributed, pain might can nonetheless by adequate pathology and evi- supported disability mоunt a claim for because of the by the behavior of the denced visible example, current an extreme ” undertaking claimant the motion.... iteration would award disability compensa “[tjhe respect joints,” 38 C.F.R. tion to a veteran currently who suffers (2000) joint 4.45 states that the extent of from pain candidly but who admits that he measured, alia, is to be inter suffered no or injury in-service disease evaluat- “[pjain on movement....” When any kind. We must dismiss that conten disabilities, the extent of muscle ing Absent, tion оut of hand. a disease or § 4.56 that the cardi- C.F.R. states service, incurred the veteran nal of muscle include “fa- signs satisfy compensation cannot the basic stat tigue-pain.” utes. wholly It is thus clear that is not argu- brief and oral reply disability irrelevant to the assessment of a ment, Mr. ar- Sanchez-Benitez refined his compensation. for which a veteran seeks gument in a second iteration to the meet In each of the cited in the above examples compensation tеsts of the basic statutes. pain is considered in connec- regulations, argument His is that under the basic dis- assessing particu- tion with the extent of a statutes, ability pain compensa- alone is a i.e., disability lar disability, being stated if disability, pain ble even the cannot be body working the functional loss of normal Thus, any disability. attributed to current (section 4.40), disability movements in the view, under Mr. Sanchez-Benitez’s a veter- (section 4.45), joints disability currently suffering pain, an who is (section 4.56). muscles any pain but who cannot attribute the to foregoing regulations by were cited disability, nonetheless com- particular is supporting the Veterans Court as its state- pensibly disabled. diagnosed ment that without a “pain an presents Mr. Sanchez-Benitez underlying malady or identifiable or condi- perplexing, question, interesting, indeed tion, does not in and of itself constitute a in but not one that we need or can decide for which service connection assuming arguendo Even appeal. this Sanchez-Benitez, granted.” 13 Vet. free-standing pain wholly that unrelated App. necessary reasoning at 285. The any compensable current is a regulations that the Veterans Court is compensa cannot be pain such only demonstrate the occasions in which proof ble the absence of of an in-service pain plays into the assessment of disabili- pain Court, or to which the current disease ty. the view of the Veterans by can be connected medical evidence. underly- unlеss a veteran suffers from an condition, ing disability “pain or such as claim must fail when loss Such alone” Court, the Board by the Veterans showing that noted factual there is no sufficient regulations eval- in-service disease these two from an did consider pain derives case, have a clear explic- we injury. In this uating or the veteran’s disabilities Board, affirmed fact-finding by sections, stating that “the itly cited the two Court, Mr. Sanchez-Beni- Veterans that can be attrib- functional cannot be attributed рain current tez’s has been taken or weakness pain uted to experienced he while the neck trauma Hence, the into account.” finding of a a factual service. Without Board’s concluding that the did not err medical nexus require- the first complied with decision trauma, question cannot reach the we neck 36-97. ment VAOPGCPREC current Mr. Sanchez-Benitez’s of whether by the requirement imposed The second stan- statutorily compensable. Our pain is that 38 C.F.R. 36-97 is VAOPGCPREC us to rear- permit does dard of review 3.321(b)(1) “if there § be considered must question present facts so as to range the cir ‘exceptional or unusual’ is evidence of 38 U.S.C. review. See appellate of law for ” require the first cumstances .... Unlike 7292(d)(2). we authorized to Nor are ment, in the Board’s is no evidence there reiterate advisory opinions. We issue that it consid that demonstrates opinion conclusion, that Mr. point, this San- 3.321(b)(1). brief, appeal, On ered 38 C.F.R. recognized, reply in his chez-Benitez over thе fact judgment skipped of the Veterans Court that the the Veterans Court grounds: alternative case rests on express opinion that the Board did not proof of medical connection failure of issue, simply noted that on this alleged in-service current facts, on the record identify could not incident, in the and the statement trauma indicating that there argument, or at oral alone” opinion Veterans Court’s circum “exceptional were or unusual” compensаble. is not proceeded It involved in this case. stances decision, citing as affirm the Board’s B decisions, authority one of its own Winters claim, respect to his low back (en banc), West, Vet.App. contends that Mr. Sanchez-Benitez required that a “remand is not which held failing to remand erred Veterans Court doing so would situations where those disability his claim for an increased back unnecessary imposition in the result Board could reconsider rating so that the possi on the without [Board] burdens intervening an it in accordance with VA flowing appel to the bility any benefits precedent opinion VAOP- General Counsel case, however, That lant.” Id. at 207. that the points 36-97. He out GCPREC currently appeal, before us on was then (1) that requires: 36-97 VAOPGCPREC decision, subsequently vacated the we § § con 4.40 and 4.45 be both 38 C.F.R. remanding instructions to the Veter with disability un when a is evaluated sidered to the Board for ans Court to remand 5293; and that 38 C.F.R. der DC Gober, v. redetermination. Winters 3.321(b)(1) any if there is § be considered (2000). F.3d 1375 cir “exceptional or unusual” evidence of Winters, change cumstances. in the intervening West, (ie., Hodge our decision law by the requirement imposed The first (Fed.Cir.1998), which relaxed F.3d 1356 36-97 is that 38 C.F.R. VAOPGCPREC in the context the standard for “material” considered §§ 4.40 and 4.45 must be when necessary material evidence” of “new and under as disability a is evaluated DC claim) between the re-open a was issued As is the case with Mr. Sanchez-Benitez. manded to the of the Board’s decision Board for further determi- issuanсe The nation, Court’s decision. Veterans Mr. Sanchez-Benitez could have the evi- simply in Winters assumed Court developed fully the record more with re- pro- dence was “new and material” and spect to his claim for an enhanced back claim analyze ceeded to the veteran’s for disability rating, we vacate and remand that well-groundedness. We the Vet- held with to the instructions Veterans Court to “should not whether a erans Court assess remand to the Board for redetеrmination grounded claim is well and unless the until on that portion appeal. of his on the the claim is DVA rules issue after DISMISSED-IN-PART, VACATED- reopened response pre- to the properly IN-PART, and REMANDED evidence, and material sentation new properly presented and the issue is on MAYER, Judge, dissenting. Chief Winters, appeal.” 219 F.3d at 1379. The principle holds true here as well. same I would remand Sanchez-Benitez’s claim neck pain. Secretary argues for The that case, The Veterans Court this on its §§ the language of 38 U.S.C. 1110 and own, nothing found that there was in the 1131 limiting compensation suggest “disability that Mr. record Sanchez-Beni- “exceptional resulting tez’s case was or unusual.” from personal injury suffered or However, it is not the role of the Veterans disease contracted in the ...” duty line of to make such factual determinations precludes payment of compensation for Rather, until sponte. sua should wait a diagnosed without or identi- “properly presented ap- the issue is underlying mаlady fiable or condition.” Id. that peal.” government argues accepts The court this conclusion. San- case, im- undisputed the facts are argues chez-Benitez that the definition plying merely that ‍‌‌​​​‌‌​​​‌‌​‌‌‌​‌‌‌​​‌​‌​​‌‌‌‌​​‌‌​‌‌​​‌‌​‌​‌​​‍the Veterans Court was 101(16) “service-connected” 38 U.S.C. applying legal undisput- standard to the only requires a temporal Nevertheless, ed facts. had Mr. Sanehez- relationship that ac- Benitez known Veterans Court tive service. The definition does not men- going to make determination with any requirement diagnosis tion for a of an regard presence “exceptional to the or underlying malady or condition. He also thereof, lack unusual” circumstances or the points to a Veterans Court’s decision which developed pre- he could have the facts or “ ‘disability’ holds that as used in pared arguments presentation impairment earning capacity, refers to Instead, Mr. Veterans Court. Sanchez- and that such definition mandates primarily arguеd Benitez before the Veter- earning capacity additional upon procedural grounds; ans Court based resulting already from an service-connect- deprived opportunity and was to further condition, regardless ed of whether or not develop light the record in of the new sepa- the additional is itself a standards set forth the VAOPGCPREC injury rate disease or caused the ser- 36-97. condition, compen- vice-connected shall be Brown, Ill Vet.App. sated.” Allen v. (1995) (emphasis original). He ar- statutorily precluded we are Since gues persuasively that service connection reaching the Mr. facts of Sanchez-Beni- granted long be as as the claim tez’s for service connection for a service, can if specif- be traced to even the portion neck we dismiss that However, pin- ic onset of cannot appeal. plausi- his because it is that, properly pointed. argument ble had case been re- The court his this labels not one that we but question, “perplexing Ante appeal.” can decide in

need or con- goes The court then

at 1361. is a that, freestanding pain even if

clude must a claim disability, such

compensable factual not a sufficient there is

fail when an in- pain derives from

showing that This standard injury. or

service disease I in Allen. higher bar than set

raises the this, sug- and the court

see no reason none.

gests to 38 C.F.R. points

Sanchez-Benitez also an unlist- 4.20, “[w]hen which states that per- it will be condition is encountered

ed closely related rate under a

missible to only or which

disease affected, the anatomical lo- but

functions closely are symptomatology

calization and Court should

analogous.” The Veterans for a ‍‌‌​​​‌‌​​​‌‌​‌‌‌​‌‌‌​​‌​‌​​‌‌‌‌​​‌‌​‌‌​​‌‌​‌​‌​​‍determi- remanded to the board

have of whether Sanchez-Benitez’s

nation capacity and impaired earning condition analogous

whether there disability. rate his

to use as baseline to claim for failure denial of the neck

Its or underlying malady specific prove was, therefore, not in accordance

condition law, rule, regulation.

with or (now INCORPORATED, known

S3 Sonicblue, Inc.), Plaintiff-

as

Appellant, CORPORATION,

NVIDIA

Defendant-Appellee.

No. 00-1257. Appeals, States

United

Federal Circuit.

Aug.

Case Details

Case Name: Jose A. Sanchez-Benitez, Claimant-Appellant v. Anthony J. Principi, Secretary of Veterans Affairs

Court Name: Court of Appeals for the Federal Circuit

Date Published: Aug 3, 2001

Citation: 259 F.3d 1356

Docket Number: 00-7099

Court Abbreviation: Fed. Cir.