274 F.3d 1361 (Fed. Cir. 2001), 01-7006, Ortiz Sr v. Principi

Docket Nº:01-7006
Citation:274 F.3d 1361
Party Name:EMILIO R. ORTIZ, SR., Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
Case Date:December 17, 2001
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1361

274 F.3d 1361 (Fed. Cir. 2001)

EMILIO R. ORTIZ, SR., Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 01-7006

United States Court of Appeals, Federal Circuit

December 17, 2001

Appealed from: United States Court of Appeals for Veterans Claims, Judge John J. Farley, III

Page 1362

Kenneth D. Auerbach, Law Office of Kenneth D. Auerbach, of Silver Spring, Maryland, argued for claimant-appellant.

Carolyn J. Craig, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. On the

Page 1363

brief were Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; Mark A. Melnick, Assistant Director; and Armondo O. Bonilla, Trial Attorney. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel; and Michelle Doses Bernstein, Attorney, Department of Veterans Affairs, of Washington, DC.

Before LOURIE, BRYSON, and LINN, Circuit Judges.

LOURIE, Circuit Judge.

Emilio R. Ortiz, Sr., appeals from the decision of the United States Court of Appeals for Veterans Claims affirming the denial of his claim for service connection for back disability by the Board of Veterans' Appeals ("the Board"). Ortiz v. Gober, No. 99-173, 2000 WL 1056365 (Vet. App. Aug. 1, 2000). Ortiz alleges that the court improperly refused to apply the "benefit of the doubt rule" under 38 U.S.C. § 5107 to the evidence of record. Because we conclude that the Court of Appeals for Veterans Claims correctly determined that the benefit of the doubt rule has no application in cases in which the Board has found that a preponderance of the evidence is against the veteran's claim, we affirm.

BACKGROUND

Mr. Ortiz served on active duty from January to October 1951. Id. at *1. In May 1970, Ortiz filed a claim for, inter alia, a back injury allegedly incurred during service, which the Department of Veterans Affairs ("VA") Regional Office later denied. Id. at *1, *2. In January 1978, the Board denied Ortiz's appeal of that decision. Id. at *2. After repeated attempts to reopen his claim based on new medical evidence, the Board finally granted Ortiz's request on May 23, 1996, and remanded the matter to the VA to consider Ortiz's new evidence on the merits. Id. at *2-*4.

After the VA obtained all of Ortiz's available medical records, the Board again denied his claim. Id. at *4. The Board determined that Ortiz's statements that he had injured his back in service as a result of slipping in the shower lacked credibility, and that the medical opinions attributing his back pain to his in-service shower accident were of limited probative value because they were based only on Ortiz's account of his injury. Id. at *5. The Court of Appeals for Veterans Claims, in reviewing the Board's decision, determined that the record contained a plausible basis for the Board's determination that the preponderance of the evidence was against Ortiz's claim. Id. The court went on to conclude that "'[b]ecause there is a plausible basis in the record for the [Board's] decision that the preponderance of the evidence was against the appellant's claim, the benefit of the doubt doctrine does not apply.'" Id. (quoting Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993)). Ortiz timely appealed to this court pursuant to 38 U.S.C. § 7292.

DISCUSSION

Our jurisdiction to review a decision of the Court of Appeals for Veterans Claims is limited. We have jurisdiction "to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof . . . and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c) (1994). A party may obtain review of a decision "with respect to the validity of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the

Page 1364

Court in making the decision." 38 U.S.C. § 7292(a) (Supp. V 1999).

The only issue raised by Ortiz on appeal is whether the benefit of the doubt rule can be applied in cases in which the Board finds that a preponderance of the evidence is against the veteran's claim for benefits. That issue, involving statutory interpretation, is one over which we have jurisdiction. Ortiz argues that even if the preponderance of the evidence is against such a claim, the evidence may nevertheless be in "approximate balance," thus triggering the application of the benefit of the doubt rule. We disagree, and conclude that the benefit of the doubt...

To continue reading

FREE SIGN UP