423 F.3d 1279 (Fed. Cir. 2005), 05-7019, Thomas v. Nicholson

Docket Nº:05-7019.
Citation:423 F.3d 1279
Party Name:Dennis R. THOMAS, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.
Case Date:September 09, 2005
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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423 F.3d 1279 (Fed. Cir. 2005)

Dennis R. THOMAS, Claimant-Appellant,


R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

No. 05-7019.

United States Court of Appeals, Federal Circuit.

Sept. 9, 2005

Appealed from: United States Court of Appeals for Veterans Claims Retired Judge Kenneth B. Kramer.

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Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. On the brief was John F. Cameron, of Montgomery, Alabama.

Steven M. Mager, Attorney, 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, David M. Cohen, Director and Mark A. Melnick, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Acting Assistant General Counsel and Y. Ken Lee, Attorney, United States Department of Veterans Affairs. Of counsel was Jamie L. Mueller .

Before CLEVENGER, GAJARSA, and PROST, Circuit Judges.

PROST, Circuit Judge.

Dennis R. Thomas ("Thomas") appeals from a decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") that affirmed a decision by the Board of Veterans' Appeals ("Board") denying Thomas's service-connected disability claim. Thomas v. Principi, 1 No. 00-844 (Vet. App. Apr. 12, 2004) (" Thomas Id. "). On appeal, Thomas argues that the Veterans Court improperly interpreted 38 U.S.C. § 105(a) by disregarding a presumption of service-connection for Thomas's injuries that occurred in the line of duty and by not requiring "clear and convincing evidence" from the Secretary of Veterans Affairs ("government") to rebut this presumption. Additionally, Thomas argues that the Veterans Court improperly interpreted 38 C.F.R. § 3.103(c)(2) regarding the duties of the Department of Veterans Affairs ("VA") hearing officer. The government responds that the Veterans Court properly affirmed the Board's decision because the § 105(a) presumption can be rebutted by a "preponderance of the evidence" showing that Thomas's actions constituted willful misconduct and were the proximate cause of his injuries. We agree, concluding that a "preponderance of evidence" establishing willful misconduct is sufficient to rebut a presumption of service-connection for peacetime disabilities under § 105(a) and further that the Veterans Court properly interpreted § 3.103(c)(2). Therefore, we affirm the Veterans Court's decision.


Thomas served on active duty in the United States Navy from October 1965 until July 1968, in the United States Army from July 1971 until October 1972, and in the Alabama Army National Guard from July 31, 1993 until August 14, 1993. Thomas v. Principi, No. 96-45-431, slip op. at 2 (B.V.A. Jan. 24, 2000) (" Thomas II "). On August 13, 1993, Thomas was involved in the altercation with a service member referred to as "F.B." Id. at 5. Thomas contends that he witnessed F.B. with an unauthorized woman in the barracks and told him that the female visitor was required to leave. Id. When F.B. indicated that he would not obey Thomas's order, Thomas went to get the Platoon Sergeant. Id. Thomas contends that when

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he and the Platoon Sergeant returned to the barracks, F.B. yelled at and ran towards Thomas. Id. The Platoon Sergeant restrained F.B. and ordered Thomas to leave the area three times. Id. Thomas did not comply with these orders and F.B. broke loose from the Platoon Sergeant's grasp and attacked Thomas. Id. at 5, 7. In the assault, Thomas sustained a fractured right clavicle and mouth and dental injuries. Id. at 5. In a memorandum dated August 17, 1993, the commander of Thomas's unit concluded that both parties were intoxicated and that Thomas disobeyed a direct order and provoked F.B. Id. at 6.

On February 27, 1996, Thomas applied for service-connection benefits relating to these injuries. The Montgomery, Alabama Regional Office of the Department of Veterans Affairs denied the claim, concluding that the injuries were the result of Thomas's willful misconduct. Id. at 2. Thomas subsequently appealed that decision, and in December 1998, the Board found that Thomas's claim was properly denied because Thomas's consumption of alcohol on August 13, 1993 constituted willful misconduct. Id. On January 24, 2000, the Board reconsidered its original opinion and rather than relying on Thomas's consumption of alcohol, it held that "[t]he evidence establishes that the cause of the veteran's injuries in 1993 was due to his disobedience of a lawful order" and denied Thomas's claim to establish service-connected disability. Id. at 3. Thereafter, Thomas appealed the Board's decision to the Veterans Court. On April 12, 2004, the Veterans Court issued an order affirming the Board's decision and entered judgment on August 10, 2004. On September 27, 2004, he appealed the Veterans Court's decision to this court.

This court has jurisdiction pursuant to 38 U.S.C. § 7292(c).


A. Standard of Review

This court reviews decisions by the Veterans Court deferentially. This court must affirm the Veterans Court decision unless it is "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law." 38 U.S.C. § 7292(d)(1) (2000). Except for constitutional issues, we may not review any "challenge to a factual determination" or any "challenge to a law or regulation as applied to the facts of a particular case." Id. § 7292(d)(2).

B. Presumption of Service Connection

On appeal, Thomas first argues that the Veterans Court improperly ignored the presumption of service connection created by 38 U.S.C § 105(a). Specifically, Thomas contends that "[t]he Board's decision did not address the statutory presumption of service connection in section 105(a)" or whether the evidence rebutted this presumption. Thomas also maintains that "[t]he Veterans Court did not address the Board's violation of this law." In response, the government submits that the Veterans Court properly recognized that the presumption "that an injury incurred during active military, naval, or air service was incurred in the line of duty unless the injury was a result of the person's own willful misconduct." See Id. § 105(a).2

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Section 105 creates a presumption of service connection for injuries that occur during active duty unless evidence establishes that the injury was the result of the person's own misconduct. Shedden v. Principi, 381 F.3d 1163, 1166 (Fed. Cir. 2004); Forshey v. Principi, 284 F.3d 1335, 1352 (Fed. Cir. 2002) (en banc). The Veterans Court properly acknowledged this presumption in its decision. Indeed, it specifically referred to § 105 as creating the "presumption" that an injury incurred "in the line of duty unless the injury was a result of the person's own willful misconduct." Thomas Id. , slip op. at 3. Moreover, the Board's decision also recognized the presumption, citing § 105 and noting that "[a]n injury or disease having an onset in service will be presumed to have been incurred in the line of duty unless the preponderance of the evidence establishes that it was due to willful misconduct." Thomas II, slip op. at 4. Thus, we reject Thomas's argument to the contrary and conclude that the Board and the Veterans Court properly considered the statutory presumption under § 105(a), and then correctly proceeded to determine whether there was sufficient evidence to demonstrate that Thomas's actions on August 13, 1993 constituted willful misconduct that caused the injuries he sustained on that date.

C. Evidentiary Standard

In rejecting Thomas's appeal, the Veterans Court concluded that the government rebutted the presumption under § 105(a) since it showed by a preponderance of evidence that Thomas's injuries were a result of willful misconduct. Thomas's principal argument on appeal is that the Veterans Court applied the incorrect evidentiary standard, namely the "preponderance of evidence" standard instead of the "clear and convincing" standard. Acknowledging that "sections 3.301 (a) and (b) and 3.1(m) and 3.1(n) of the Secretary's regulations [implementing § 105] do not provide an evidentiary standard by which the defense of willful misconduct must be proven," Thomas argues that "no less than a showing of clear and convincing evidence" is necessary to rebut the presumption of service...

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