381 F.3d 1163 (Fed. Cir. 2004), 04-7001, Shedden v. Principi

Docket Nº:04-7001.
Citation:381 F.3d 1163
Party Name:Jerry R. SHEDDEN, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
Case Date:August 20, 2004
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1163

381 F.3d 1163 (Fed. Cir. 2004)

Jerry R. SHEDDEN, Claimant-Appellant,

v.

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

No. 04-7001.

United States Court of Appeals, Federal Circuit

August 20, 2004

Page 1164

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, KS, argued for claimant-appellant.

Martin F. Hockey, Jr., Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General; and David M. Cohen, Director. Of counsel were Michael J. Timinski, Deputy Assistant General Counsel, and Y. Ken Lee, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, DYK and PROST, Circuit Judges.

Opinion concurring-in-part and dissenting-in-part filed by NEWMAN, Circuit Judge.

DYK, Circuit Judge.

Appellant Jerry R. Shedden ("Mr. Shedden") appeals from the decision of the Court of Appeals for Veterans Claims affirming the Board of Veterans' Appeals' ("BVA") denial of his claim for clear and unmistakable error ("CUE") in a 1994 BVA decision that denied service connection for a psychiatric disorder. Shedden v. Principi, No. 01-1534, 2003 WL 22020182 (Vet.App. Aug. 22, 2003). While the Court of Appeals for Veterans Claims erroneously stated that 38 U.S.C. § 105(a) does not create a presumption of service connection, we conclude that this error was harmless, and we affirm.

BACKGROUND

Mr. Shedden served on active duty in the United States Marine Corps from January 1968 to January 1972. After leaving service, Mr. Shedden made a claim for service connection for a psychiatric disorder that the Department of Veterans Affairs ("VA") Regional Office ("RO") denied in a February 1980 rating decision. In a

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1982 rating decision the RO denied Mr. Shedden's claim for service connection for post-traumatic stress disorder ("PTSD"). Neither of these decisions was appealed, and they became final.

Subsequently, Mr. Shedden requested that his claim of entitlement for service connection for a psychiatric disorder, including PTSD, be reopened because of new and material evidence. The RO denied this request in July 1988. That decision was appealed, and the BVA remanded to the RO for additional development. After a series of decisions by the RO continuing to deny Mr. Shedden's claim for service connection, the appellant again appealed to the BVA.

In a June 1994 decision the BVA determined that new and material evidence had been submitted and reopened Mr. Shedden's claim, but it denied it on the merits. Reviewing Mr. Shedden's claim de novo, the BVA found that during the period he was on active duty, "[t]he veteran's service medical records [we]re silent as to any complaints, treatment or diagnosis of a psychiatric disorder." In re Shedden, No. 89-25 959, slip op. at 6 (Bd. Vet.App. June 2, 1994) (the "1994 decision"). The BVA further held that "[t]here is also no showing of what could be an acquired psychiatric disorder either prior to or during service, or at a point sufficiently proximate to service as could be reasonably related thereto." Id. at 10. Moreover, the BVA found that the veteran had failed to show that he was then suffering from PTSD. Id. at 4.

In December 2000 Mr. Shedden filed a claim alleging that there was CUE in the BVA's 1994 decision. Among other things, 1 Mr. Shedden contended that there was evidence in the record that he had suffered from a psychiatric condition during service and that this triggered a presumption of service connection under 38 U.S.C. § 105(a). In a 2001 decision the BVA rejected Mr. Shedden's CUE claim holding that in the 1994 decision it correctly "found that a psychiatric disorder had not been incurred in or aggravated by active service" and that "[t]he Board was not required to consider the provisions of 38 U.S.C.[] § 105(a)." In re Shedden, No. 01-02 277, slip op. at 31 (Bd.Vet.App. July 23, 2001). The BVA further held that, even if section 105(a) were applicable, the veteran's

assertions that the statute creates a presumption of service connection is [sic] without merit. As the language of the statute indicates, an injury or disease that is incurred during active service is deemed to have been incurred in the line of duty and not the result of the veteran's own misconduct. Service connection can be granted only for diseases or injuries that are incurred in the line of duty, and the statute creates a presumption that an injury incurred during active service was incurred in the line of duty. The statute does not pertain to whether the injury or disease was, in fact, incurred in active service.

Id. (citations omitted).

On appeal, the Court of Appeals for Veterans Claims agreed with the BVA that section 105(a) provides a presumption that an injury was incurred in the "line of duty," but "does not grant presumptive service connection for an injury ... incurred in active duty." Shedden v. Principi, slip op. at 3. The court further held that the veteran's section 105(a) argument "d[id] not constitute a sufficient basis for

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establishing CUE ... because he ha[d] not demonstrated how any of the asserted errors ... would have been outcome determinative of the June 1994 BVA decision...." Id. Mr. Shedden timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292.

DISCUSSION

"We review a claim for legal error in the decision of the Court of Appeals for Veterans Claims without deference." Moody v. Principi, 360 F.3d 1306, 1310 (Fed.Cir. 2004).

I

Sections 1110 and 1131 of Title 38 of the United States Code provide compensation to veterans for personal injury or disease and for aggravation of a preexisting injury or disease, if they are incurred "in line of duty" and are service-connected. See 38 U.S.C. §§ 1110, 1131 (2000). 2 We have recently had occasion to review the application of those provisions in the context of the presumption of soundness in Wagner. This case requires us to consider their application in the context of 38 U.S.C. § 105(a). Section 105(a) provides that:

[a]n injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in line of duty and not the result of the veterans own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the persons own willful misconduct or abuse of alcohol or drugs.

38 U.S.C. § 105(a) (emphasis added). 3 Here, we must consider whether the statutory language "incurred in line of duty" and "service-connected" mean the same thing. We conclude that they do.

The statute itself makes clear that "service-connected" means the same thing as "incurred in the line of duty." 38 U.S.C. § 101(16) states that: The term service-connected means, with respect...

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