Holton v. Shinseki

• Citation: 557 F.3d 1362
• Decision Date: 05 March 2009
• Docket Number: No. 2008-7081.,No. 2008-7088.,2008-7081.,2008-7088.
• Parties: JOHN R. HOLTON, Jr., Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. Denver M. Bryant, Claimant-Appellant, v. Eric K. Shinseki, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

557 F.3d 1362

JOHN R. HOLTON, Jr., Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Denver M. Bryant, Claimant-Appellant, v. Eric K. Shinseki, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2008-7081.

No. 2008-7088.

United States Court of Appeals, Federal Circuit.

March 5, 2009.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, KS argued for both claimants-appellants in appeals 2008-7018 and 2008-7088.

Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee in appeal 2008-7081.

On the brief were Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director, and Allison Kidd-Miller, Trial Attorney. Of counsel were David J. Barrans, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Scott D. Austin, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee in appeal 2008-7088. With him on the brief were, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel were David J. Barrans, Deputy Assistant General Counsel, and Tracey P. Warren, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Before BRYSON, LINN, and PROST, Circuit Judges.

BRYSON, Circuit Judge.

I

John R. Holton, Jr., and Denver M. Bryant appeal the decisions of the Court of Appeals for Veterans Claims ("Veterans Court") denying their respective claims for disability compensation. Because the appellants put forth similar arguments that require us to clarify the elements that a veteran must satisfy to receive disability compensation, we address their appeals together. We affirm in both cases.

A

Mr. Holton served on active duty in the U.S. Coast Guard from July 1968 to July 1972. In February 2002, Mr. Holton filed a claim with the Department of Veterans Affairs ("DVA") seeking disability compensation for a pelvis fracture. His entrance examination, service medical records, and separation examination showed no evidence of an injury to his pelvis. Several years after his separation from the service, however, Mr. Holton began to experience pain in his right hip and buttocks, and an X-ray performed in 2002 at a DVA medical facility showed an avulsion fracture on Mr. Holton's right inferior pubic ramus. Mr. Holton claimed that the fracture was the result of his slipping and falling on slick metal stairs while he was working in ships' engine rooms during his service 30 years earlier.

In June 2002, a DVA regional office denied Mr. Holton's claim on the ground that his service medical records did not reflect that he was diagnosed with or treated for any bone injury during service. Mr. Holton appealed that decision to the Board of Veterans' Appeals. Along with his appeal, Mr. Holton submitted a statement from another veteran who served with him aboard a Coast Guard icebreaker. According to the other veteran's statement, the ship was frequently in rough seas and its ladders were often slippery. The other veteran therefore concluded that it was "highly likely" that Mr. Holton sustained injuries while serving aboard the ship. The other veteran did not claim to have seen Mr. Holton fall, nor did he claim any specific knowledge of any injury that Mr. Holton sustained in service. The Board found that Mr. Holton had failed to put forth objective evidence that he incurred any fracture-causing injury while in service, and it therefore rejected his claim for compensation.

On the parties' joint motion, the Veterans Court remanded for a medical nexus opinion by an orthopedic specialist as to the likelihood that any existing pelvis fracture was causally related to Mr. Holton's falls during service. A DVA physician examined Mr. Holton in 2005 and found evidence of calcific myositis but no evidence of any fracture of the pubic ramus. The examining physician noted that Mr. Holton had stated that he had received his first diagnosis of a pelvis fracture in 2000 and that he had experienced pain in his hip for the previous seven or eight years. The examiner concluded that "[i]t would be speculative at best to say that the pubic fracture is one caused from service activity or fracture in as much as the time frame here is something of the order of 25-30 years." The regional office again denied Mr. Holton's claim for compensation, and the Board again affirmed, finding that the record did not include "even a scintilla" of competent medical evidence showing a nexus between any current disability of the pelvis and the falls Mr. Holton sustained during active service.

B

Mr. Bryant served on active duty in the U.S. Army from September 1943 to October 1947, and from January 1948 to June 1963. In September 1962, Mr. Bryant was examined at a military hospital in Canada after complaining of eye irritation and seeing halos around lights. The examination was negative except for a tonometer measurement showing increased intra-ocular pressure in both eyes. The examiner reported at the time that there was "some indication" that the tonometer was defective, but because no other tonometer was available to confirm the pressure reading, Mr. Bryant was diagnosed with acute glaucoma and given a prescription for anti-glaucoma medication. In a follow-up examination conducted a week later, the examining physician concluded that the first tonometer reading was erroneous and that Mr. Bryant did not have glaucoma. No evidence of glaucoma was reported in a December 1962 eye examination, in Mr. Bryant's 1963 separation examination, or in post-service medical examinations conducted over the next two decades. In 1990, however, a DVA ophthalmologist diagnosed Mr. Bryant with uncontrolled open-angle glaucoma.

In 1996 Mr. Bryant filed a claim for disability compensation for glaucoma. Mr. Bryant contended that he had incurred glaucoma during service, as evidenced by the September 1962 diagnosis, and that his current condition was related to that in-service incurrence of the disease. A DVA regional office concluded that Mr. Bryant did not incur glaucoma during service and therefore denied his claim for compensation. Mr. Bryant appealed that decision to the Board, which in a 1998 decision affirmed the regional office's denial of his claim. The Board found that the only in-service evidence of glaucoma resulted from a defective tonometer measurement and concluded that no medical evidence linked his current condition to his military service.

The Veterans Court vacated the Board's decision and remanded because, among other things, the DVA had failed to provide Mr. Bryant with a medical examination directed at determining the relationship between Mr. Bryant's glaucoma and his military service. Mr. Bryant received an ophthalmologic examination in 2003. The examining physician concluded that Mr. Bryant's glaucoma did not result from any disease incurred during service because post-service medical examinations showed normal intra-ocular pressures and no indication of any abnormalities of the optic nerves.

The Board then denied Mr. Bryant's claim for disability compensation for glaucoma. The Board found that Mr. Bryant's 1962 glaucoma diagnosis resulted from a faulty tonometer reading because the contemporaneous follow-up examination and the 2003 medical opinion ruled out any in-service glaucoma. The Board concluded:

In the absence of any objective medical opinion of record linking the veteran's current glaucoma to military service or any incident thereof, the Board finds that the glaucoma first definitively diagnosed over 27 years post service is clearly of post-service origin, and is unrelated to military service or any incident thereof, and that the preponderance of the evidence is thus against the claim for service connection for glaucoma.

Mr. Holton and Mr. Bryant appealed to the Veterans Court and argued that the Board either misinterpreted or failed to apply 38 U.S.C. §§ 105(a) and 1111. The Veterans Court affirmed the Board's denial of compensation in both cases. Mr. Holton and Mr. Bryant now appeal to this court.

II

Veterans are entitled to compensation from the DVA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"—the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir.2004). Several statutory presumptions operate in connection with sections 1110 and 1131, and the appellants invoke two such provisions in these appeals, 38 U.S.C. § 105(a) and 38 U.S.C. § 1111.

A

Section 105(a) states in relevant part:

An 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 veteran's 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 person's own willful misconduct or abuse of alcohol or drugs.

By its plain terms, section 105(a) creates a presumption that an injury or disease incurred by a veteran during active service was incurred in the line of duty and not caused by the...