Bastien v. Shinseki
| Decision Date | 24 March 2010 |
| Docket Number | No. 2009-7099.,2009-7099. |
| Citation | 599 F.3d 1301 |
| Parties | Reida J. BASTIEN, ClaimantAppellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, RespondentAppellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Douglas J. Rosinski, Ogletree, Deakins Nash, Smoak & Stewart, P.C., of Columbia, SC, argued for claimant-appellant.
Hilliary A. Stern, Senior Trial Attorney Commercial Litigation Branch, Civil Division, United States Department of Justice of Washington, DC, argued for respondent-appellee. With her on the brief were Tony West, Assistant Attorney General Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief was David J. Barrens, Deputy Assistant General Counsel, Office of General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Before NEWMAN, FRIEDMAN, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge FRIEDMAN. Dissenting opinion filed by Circuit Judge NEWMAN.
This appeal challenges the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court"), affirming the decision of the Board of Veterans' Appeals ("Board"), that the death of the appellant Reida J. Bastien ("Mrs. Bastien")'s husband, Robert W. Bastien ("Mr.Bastien"), did not result from his military service. We conclude that all but one of these substantive contentions involve factual issues that we have no jurisdiction to review and that a recent decision of this court requires rejection of her remaining contention. We also reject the claim that the Veterans Court improperly struck the initial version of her opening brief for violating its procedural rule prohibiting the citation of its nonprecedential opinion. We therefore affirm.
A. During his military service from May 1972 to May 1976, Mr. Bastien had worked at a university radiation facility where he participated in experiments testing the effects of radiation on monkeys. He placed the monkeys in the reactor before they were exposed to radiation and retrieved them after the exposure. Personnel within the reactor facility were required to wear a dosimeter badge to monitor radiation exposure during work. He was assigned to work in the reactor facility for at least thirty-one days.
In 1995, Mr. Bastien died of pneumonia resulting from Waldenstrom's macroglobu linemia, a rare blood cancer. He was diagnosed with other rare forms of lymphoma, including non-Hodgkin's lymphoma.
Shortly before his death, he filed a claim for compensation with the Department of Veterans Affairs ("Department") for "lymphoma" caused by exposure to ionizing radiation during his military service, from both his time at the reactor facility and from in-service sinus x-rays he received in 1972. After his death, Mrs. Bastien applied for dependency and indemnity compensation, and for educational benefits for her children, on the same basis.
B. The procedural history of Mrs. Bastien's claim is convoluted. The case went before the Board and the Veterans Court several times. In its final decision, the Board denied her claim, finding that the preponderance of the evidence did not establish that her husband's death was attributable to radiation exposure during his military service.
The evidence before the Board was conflicting. Mrs. Bastien submitted reports from two physicians. Dr. Hall, a clinical faculty member of the Medical University of South Carolina Hollings Cancer Center, stated that "there has been a reported case of Waldenstrom's [m]acroglobulinemia in a patient treated with radiation therapy" and that Mrs. Bastien's "husband's cancer, therefore, could be related to radiation exposure." The other physician, Dr. Weiss, a Department employee, concluded that "it is plausible that low dose radiation exposure by the veteran ' "may [have] been causal in his development of Waldenstrom's macroglobulinemia, " ' " and that "a radiation badge may be insensitive to chronic low dose radiation, " which could "account for the absence of an accumulated dose of radiation for the veteran."
In addition to these two physicians' reports, Mrs. Bastien presented her own estimate of the amount of radiation her husband had received. Her estimate, which she subsequently updated, was based on "[her] math knowledge... research fundamentals and known facts." (Emphasis omitted). Her studies concluded that her husband had received substantially more radiation than the physicians' reports had indicated. She also concluded that, based on the radiation dosage she had calculated, some experts would agree that such exposure would cause three out of 10, 000 individuals to develop cancer. Mrs. Bastien also submitted a letter from a private nuclear engineering company, the Delphi Groupe, Inc., which stated that Mrs. Bastien may have overestimated her husband's radiation exposure and thus should rely instead on the opinions of Drs. Hall and Weiss.
The Department submitted reports by two other physicians it employed. Dr. Mather, its Chief Public Health and Environmental Hazards Officer, stated that "[i]n light of the veteran's low reported radiation dose and uncertainty about the risk of plasma cell malignancies after radiation exposure... it is unlikely that the veteran's Waldenstrom's macroglobulinemia can be attributed to exposure to ionizing radiation in service." Dr. Mather also stated that it was "not possible" for her office to provide "an independent" estimate of the amount of radiation Mr. Bastien had received.
Dr. Pasquale, a hematologist, who was also an associate professor of medicine at Albany Medical College, summarized in detail "selected published data from peer reviewed journals that address the risk of developing NHL and WM [non-Hodgkin's lymphoma and Waldenstrom's macroglobulinemial following radiation exposure." He stated that "[b]ased on the above data, I must conclude that this veteran's radiation exposure is extremely unlikely to have caused his cancer."
The Board "conclude[d] that, for the purpose of this decision, the veteran's inservice duties included exposure to ionizing radiation." After a fairly detailed summary and discussion of the evidence, the Board "conclude[d]" that
the December 1998 opinion of the physician designee of the VA [Department] Under Secretary for Health [Dr. Mather] that "it was unlikely" that the veteran's Waldenstrom's macroglobulinemia could be attributed to exposure to ionizing radiation inservice [sic] in light of the low reported dose, and to the September 1999 opinion [of Dr. Pasquale] that the veteran's radiation exposure was "extremely unlikely" to have caused his cancers are of greater probative value than the June 1995 opinion from Dr. Hall, the January 199(5 opinion from a VA physician [Dr. Weiss], or the April 2002 opinion from the Delphi Groupe, Inc.
"The Board reached this conclusion because... the opinions relied on by the widow were based on a review of something less than a review of all of the evidence, and they included conditional phrases like 'could be, ' 'may be, ' 'it was plausible, ' 'lent credence to the possibility, ' and/or 'would make it difficult to refute.'"
The Board stated that "even assuming that the veteran was exposed to some levelof ionizing radiation while on active duty, service connection cannot be granted... because the preponderance of the competent evidence is against finding a nexus between any such exposure and these claimed disabilities."
The Board stated that in so concluding it had (Internal citations omitted).
In affirming, the Veterans Court stated that "[i]t is the Board's responsibility, not this Court's, to review and assess the credibility and probative value of the evidence of record." The court held that the Board had "considered and weighed the dose estimates submitted by Mrs. Bastien, " but The court further stated that The court concluded that the Board justifiably had "found the medical opinions of Drs. Mather and Pasquale more probative" than the medical opinions of the physicians upon which Mrs. Bastien relied.
Unless an appeal from the Veterans Court "presents a constitutional issue, " this court "may not review (A) a challenge to a factual...
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