ROBERT D. PRINKEY, Claimant-Appellant, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
2012-7138
United States Court of Appeals for the Federal Circuit
November 19, 2013
Appeal from the United States Court of Appeals for Veterans Claims in No. 10-3277, Judge Lawrence B. Hagel.
MARTIN F. HOCKEY, JR., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were STUART F. DELERY, Principal Deputy Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MICHAEL S. MACKO, Trial Attorney. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel and TRACEY PARKER WARREN, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before NEWMAN, CLEVENGER, and TARANTO, Circuit Judges.
Robert D. Prinkey appeals from the final decision of the United States Court of Appeals for Veterans Claims (“Veterans Court“) affirming the decision of the Board of Veterans’ Appeals (“BVA“) sustaining the severance of service connection for diabetes mellitus type II and related disabilities and denying entitlement to a total disability rating based on individual unemployability. Prinkey v. Shinseki, No. 10-3277, 2012 WL 985754 (Vet. App. Mar. 23, 2012). For the reasons stated below, we hold that a central contention he makes is outside our statutory jurisdiction, and we otherwise affirm.
I
The law permits severance of service connection for previously awarded disability benefits, i.e., reversing an earlier finding that a particular disability was connected to military service and cutting off benefits that had been awarded based on that finding. In particular,
The language of
In order for error to be clear and unmistakable, it must be outcome determinative, i.e., one whose avoidance “would have manifestly changed the outcome” of a prior decision. Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999).
II
Mr. Prinkey served in the United States Army from 1969 to 1970, including time in Vietnam. He was diagnosed with diabetes in 1996. Certain diseases, including diabetes mellitus type II, are presumed to be service connected if the veteran was exposed to Agent Orange during service. See
Mr. Prinkey sought to reopen his claim on August 1, 2005. A further medical
With regard to the issue of Mr. Prinkey‘s employability, on March 21, 2006, the nurse practitioner concluded, apparently on the basis of her January 5, 2006, examination, that Mr. Prinkey‘s employability was severely impaired by his diabetes. Thereafter the nurse practitioner reviewed Mr. Prinkey‘s full claims file and discovered information that had not previously been available to medical evaluators. The nurse practitioner‘s subsequent evaluation on April 18, 2006, stated:
Patient has a history of pancreatectomy which more likely than not resulted in the pancreancre-atic [sic] insufficiency and inadequate insulin secretion which caused the patient‘s diabetes. The cause for his pancreatectomy may have been a tumor, or per his C-file, a note 5/30/03 by Dr. D. [S.]: “He has had a multitude of medical problems especially since 1993 and had surgery to remove most of his pancreas, gall bladder and stomach because of what he was told was his history of drinking despite his reported having quit in 1974.” The date of the pancreatectomy was approximately 1994 and patient reports diabetes diagnosed in 1996. C-file has varying dates from 1994, and 1995. Therefore, it is more likely than not that the diabetes mellitus type II, on insulin resulted from the pancreatectomy.
R.A. 54.
The nurse practitioner concluded that Mr. Prinkey‘s diabetes more likely than not resulted from the surgery that removed most of his pancreas, not from his exposure to Agent Orange. Her evaluation was further reviewed the same day by the endocrinologist, whose evaluation, as contained in an addendum to the nurse practitioner‘s report, stated:
Review of records indicate [sic] that the veteran does not have DM2 [diabetes mellitus type II]. The veteran has diabetes secondary to pancreatectomy for chronic alcohol abuse. He has minimal beta cell function, as indicated by his C-Peptide level of 0.7, barely detectable. It is as likely as not that his remaining pancreatic function will continue to decrease with time, leaving him entirely insulin dependent. His pancreatic failure and pancreatic resection have nothing to do with Agent Orange exposure.
R.A. 53.
Whereas the nurse practitioner‘s evaluation was that Mr. Prinkey‘s diabetes was more likely than not caused by the removal of most of his pancreas, not his exposure to Agent Orange, the endocrinologist‘s opinion left no room for doubt: his diabetes resulted from his pancreatectomy for chronic alcohol abuse and had no association with his possible exposure to Agent Orange.
On the basis of the April 18, 2006, evaluations, the Cleveland RO entered a further rating decision, dated July 17, 2006, and conveyed by letter dated July 20, 2006, to Mr. Prinkey. The letter stated that “[w]e have reviewed medical records concerning your service-connected condition(s) and noted new evidence reference [sic] the origins
The July 17 letter afforded Mr. Prinkey sixty days in which to respond with new relevant evidence. When he did not respond in the stated time, the Cleveland RO informed Mr. Prinkey by letter on September 29, 2006, that it was acting on the rating decision of proposed severance of service connection for diabetes and related injuries “because our records show that your diabetes mellitus was not caused by exposure to agent orange.” R.A. 64. Consequently, all of Mr. Prinkey‘s ratings dependent on diabetes resulting from exposure to Agent Orange were severed effective December 1, 2006. Mr. Prinkey timely filed a Notice of Disagreement (“NoD“) with the rating decision severing his service connections, thus indicating his desire to appeal the adverse rating to the BVA.
The Cleveland RO prepared a Statement of the Case (“SoC“), a document that explains in detail the basis and rationale for the adverse rating decision. The SoC explained that service connection:
can be severed only on the basis of clear and unmistakable error. In this case it was determined that there was clear and unmistakable evidence that the veteran‘s diabetes was not due to the presumption of relationship to herbicides but was due to residuals of a pancreatectomy. Evidence of the pancreatectomy is noted throughout the evidence of record. The most recent VA examination contained a C-peptide test result that the veteran was insulin deficient and not insulin resistant as would be the case with type II diabetes. Since the veteran‘s diabetes is not truly type II and is found secondary to a pancreatectomy long after service, severance of service connection was proper.
R.A. 80-81.
Mr. Prinkey‘s NoD was followed by his appeal to the BVA. A hearing was held at his request on July 21, 2008, and the BVA issued its decision on January 26, 2009. During the July hearing, Mr. Prinkey mentioned his previous pancreatic surgery and current medical treatment he was receiving for his diabetes. Because of the possibility of additional relevant records, the BVA remanded Mr. Prinkey‘s case for further development. Following remand additional medical records were received. The additional records included outpatient treatment records from various VA medical centers covering the periods from March 7, 2002, to January 20, 2010, treatment reports by Dr. [D. D.], and a CT report from Dr. [R. R.] dated May 1, 2001. Following receipt and analysis of the additional records by the Appeals Management Center, a supplemental SoC was prepared. The supplemental SoC recited the requirements for severance of service connection set forth in
The supplemental SoC signaled the completion of the remand, and Mr. Prinkey‘s appeal was returned to the BVA, with the issue framed as whether under
III
The BVA decision dated August 4, 2010, first recited the procedural rights afforded to a veteran for whom the VA proposes to sever an award of service connection and concluded that those rights had been satisfied in this case.
The BVA focused its analysis of the facts on the two relevant rating decisions: the July 8, 2003, rating decision of service connection, which was based on the June 2003 medical evaluation, and the September 29, 2006, rating decision severing service connection, which was based on the April 18, 2006, medical evaluations.
With regard to the 2006 medical evaluations, the BVA concluded that the endocrinologist was unequivocal in her assessment that Mr. Prinkey‘s diabetes was caused by his pancreatectomy and that his pancreatic failure had nothing to do with exposure to Agent Orange, stating that “there could not be a more definite statement than she made in the addendum that she authored.” R.A. 121. The BVA found that the endocrinologist provided clinical findings to support her statement of etiology, referring to Mr. Prinkey‘s minimal beta cell function. The endocrinologist had also acknowledged the nurse practitioner‘s report which referred to the dates of onset of diabetes and the previous pancreatic surgery, and connected Mr. Prinkey‘s inadequate insulin secretion to pancreatic insufficiency following the surgery. The BVA specifically found that the evidence showed a diagnosis of diabetes two years after the pancreatic surgery and thus that there were no deficiencies in the factual foundation referred to by the nurse practitioner and acknowledged by the endocrinologist. The BVA further found that the endocrinologist was “a pertinent specialist of the highest level of expertise as to this issue.” R.A. 121.
With regard to the medical evaluation upon which service connection was granted in 2003, the BVA concluded as follows:
The examination reports upon which the RO relied in granting service connection were uninformed as to the resection of the Veteran‘s pancreas. The June 2003 examination report did not reference a resection of the pancreas or alcohol induced disease of the pancreas and the examiner did not have the claims file before him. The examination was inadequate because the examiners [sic] did not have sufficient facts before him to render a correct statement of etiology. All later statements that may have referred to diabetes as due to Agent Orange exposure are devoid of ex-planation and depend entirely on what the June 2003 examiner incorrectly determined and the RO endorsed by its label of his diabetes as due to Agent Orange exposure. Indeed, it was not until medical professionals, the nurse practitioner and the endocrinologist, reviewed the claims file that anyone who offered medical examination results were aware of the pancreas resection. The only valid
opinion in this case is that of the endocrinologist as stated in the April 2006 addendum.
R.A. 122.
Based on the foregoing analysis of the record, the BVA held that the VA had shown clear and unmistakable error in the 2003 decision of service connection for diabetes mellitus and denied Mr. Prinkey‘s appeal. Mr. Prinkey then timely appealed the BVA decision to the Veterans Court.
IV
Before the Veterans Court, Mr. Prinkey challenged the BVA‘s decision on two grounds. First, Mr. Prinkey argued that the BVA “failed to observe applicable law concerning the standards for severance of service connection based on clear and unmistakable error.” Prinkey, 2012 WL 985754, at *3. The gist of Mr. Prinkey‘s argument on this point was that the BVA had erred by “weighing the evidence” when considering whether the VA had shown clear and unmistakable error under
Mr. Prinkey‘s second ground of challenge concerned the adequacy of the medical opinion by the endocrinologist upon which the 2006 severance decision was based. Mr. Prinkey argued that the endocrinologist had insufficient rationale to support her conclusion that his diabetes is attributable to his pancreatic surgery and not to exposure to Agent Orange. In addition, Mr. Prinkey argued that the endocrinologist opined on an incomplete record because she did not have before her the CT radiology report from May 2001. Id. This 2001 report did not become part of Mr. Prinkey‘s C-file until January 2009, after remand and before final adjudication by the BVA. Id. Because the BVA had found the April 2006 medical opinion adequate, the Veterans Court took Mr. Prinkey‘s argument as a challenge to the Board‘s finding of fact. Id. at *4. The Veterans Court held that the BVA had not committed clear error because an August 2002 record in the file at the time of the 2006 medical evaluations informed the endocrinologist that Mr. Prinkey had had surgery to remove most of his pancreas—information that duplicated the information in the 2001 CT scan. Id. Any possible error in not having the 2001 CT scan before the April 2006 medical examiners was thus harmless. Id. In addition, the Veterans Court rejected Mr. Prinkey‘s argument that the 2006 medical opinions lacked sufficient rationale. Id.
Rejecting both of Mr. Prinkey‘s challenges to the BVA‘s decision affirming the severance of service connection under
V
Regarding appeals from the Veterans Court, we have exclusive jurisdiction to interpret constitutional and statutory provisions and to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof by the Veterans Court.
As this court explained in Forshey v. Principi, 284 F.3d 1335, 1345 (Fed. Cir. 2002) (en banc), before the enactment of
VI
In the light of our jurisdictional authority over decisions of the Veterans Court, we turn to Mr. Prinkey‘s appeal to this court. His principal ground for appeal is a direct challenge to the sufficiency of the April 2006 medical evaluations that led to the severance of his service connection. Appellant Br. 25–34, 49–61. He frames the sufficiency of a medical opinion as a legal issue, and argues that we thus have jurisdiction to assess the April 2006 medical evaluation independently and to conclude that it is insufficient as a matter of law to show that the 2003 service connection rating is clearly and unmistakably erroneous. Id. at 39-43. As for relief, Mr. Prinkey asks this court to remand the case with instructions to reinstate his service connection. Id. at 61.
Mr. Prinkey argues that the endocrinologist‘s “74 word addendum” medical opinion is insufficient because it lacks a full explanation of the basis for the rejection of the 2003 rating decision. Id. at 49. The VA disagrees, pointing to the analysis of the BVA and the Veterans Court of the same addendum finding it to be sufficient. Appellee Br. 39-41. This is the factual dispute Mr. Prinkey asks this court to decide. The VA argues that such a dispute is beyond our jurisdiction, id. at 15–24, and, for the reasons that follow, we agree.
We have previously addressed the issue of our jurisdiction to review the facts underlying the assessment of clear and unmistakable error by the Veterans Court. In Belcher v. West, 214 F.3d 1335 (Fed. Cir. 2000), modified on other grounds, Forshey v. Principi, 284 F.3d 1335, 1359 (Fed. Cir. 2002) (en banc), the question was whether Mr. Belcher was entitled to the presumption of soundness upon his entry into the Navy. See
After Belcher, we have been asked on several occasions to exercise our jurisdiction to judge the sufficiency of a medical opinion. In each instance, by short opinions in non-precedential format, we have dismissed the appeals for want of jurisdiction on the ground that whether a medical opinion is adequate is a question of fact. See Escobar v. Shinseki, No. 2012-7097, 2013 WL 3481718, at *3 (Fed. Cir. 2013) (“[W]hether a medical opinion is ‘adequate’ is squarely a question of fact.“); Washington v. Shinseki, 452 F. App‘x 983, 985 (Fed. Cir. 2011) (“The adequacy of a medical opinion is a question of fact.“); Pathak v. Shinseki, 412 F. App‘x 301, 303–04 (Fed. Cir. 2011) (holding that adequacy of medical opinion is a question of fact); Elliott v. Shinseki, 415 F. App‘x 251, 252 (Fed. Cir. 2011) (citing DeRamos v. Shinseki, 358 F. App‘x 167 (Fed. Cir. 2009) and Cole v. Shinseki, 309 F. App‘x 399 (Fed. Cir. 2009) for the proposition that adequacy of a medical opinion is an unreviewable finding of fact); Rayburn v. Peake, 306 F. App‘x 580, 582 (Fed. Cir. 2009) (same); Lechliter v. Peake, 282 F. App‘x 815, 820 (Fed. Cir. 2008) (same).
In each of these several cases, we correctly determined that the sufficiency of a medical opinion is a matter beyond our jurisdictional reach, because the underlying question is one of fact. And the Veterans Court treats the issue the same way: “[w]hether a medical opinion is adequate is a finding of fact which this court reviews under the ‘clearly erroneous’ standard of review.” D‘Aries v. Peake, 22 Vet. App. 97, 104 (Vet. App. 2008).
Indeed, the result Mr. Prinkey seeks—for this court to independently judge the adequacy of medical opinions rendered in the VA and to order the VA to act on the decisions in which we would reverse the assessment of medical opinions made by the Veterans Court—would simply turn the jurisdictional order set by Congress in 1988 on its head. Instead of the Veterans Court acting as the sole appellate judge of medical evidence (except where a constitutional issue is before this court) while deferring to the BVA‘s assessment of facts under the clear error standard, Mr. Prinkey would override the authority of the Veterans Court by lodging independent review of medical opinions in this court. This is precisely what Congress forbade.
VII
Mr. Prinkey raises two other issues that warrant mention. First, he argues that the Veterans Court misconstrued
Second, Mr. Prinkey argues that his constitutional rights were violated, but
VIII
The central issue Mr. Prinkey presents is beyond our statutory jurisdiction. His other challenges, while within our jurisdiction, lack merit.
AFFIRMED
COSTS
Each side shall bear its own costs.