Dambach v. Gober

• Decision Date: 08 September 2000
• Citation: 223 F.3d 1376
• Parties: (Fed. Cir. 2000) FREDERICK H. DAMBACH, Claimant-Appellant, v. HERSHEL W. GOBER, Acting Secretary of Veterans Affairs, Respondent-Appellee. 00-7021 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1376

223 F.3d 1376 (Fed. Cir. 2000)

FREDERICK H. DAMBACH, Claimant-Appellant, v. HERSHEL W. GOBER, Acting Secretary of Veterans Affairs, Respondent-Appellee.

00-7021

United States Court of Appeals for the Federal Circuit

DECIDED: September 8, 2000

Appealed from: United States Court of Appeals for Veterans Claims

Judge Ronald M. Holdaway

[Copyrighted Material Omitted] Frederick H. Dambach, of Lakewood, New Jersey, pro se.

Erin E. Powell, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for respondent-appellee. On the brief wereDavid W. Ogden, Assistant Attorney General; David M. Cohen, Director; and Mark A. Melnick, Assistant Director.

Before MAYER, Chief Judge, ARCHER, Senior Circuit Judge, and LINN, Circuit Judge.

MAYER, Chief Judge.

Frederick H. Dambach appeals from the August 3, 1999 judgment of the United States Court of Appeals for Veterans Claims, Docket No. 98-356, affirming-in-part and remanding his appeal to the Board of Veterans' Appeals to determine whether an independent medical examination was conducted pursuant to 38 U.S.C. § 7109 (1994), and whether Dambach's heart condition is service related. Because the court erred in holding 38 U.S.C. § 1154(b) (1994) inapplicable to his case, we reverse and remand.

Background

Dambach served in the United States Air Force from November 1964 to October 1968, including service in the Vietnam war. His service medical records show that while he was in Vietnam he was treated for tonsillitis and other infections, but the records do not indicate treatment for a heart condition. He testified at his board hearing that during combat in Vietnam he did not always have the opportunity to be treated by a physician or to have health problems recorded in his service medical records.

In January 1993, Dambach sought compensation from the Department of Veterans Affairs for a heart condition. After several remands by the board to obtain Dambach's complete medical records and an independent medical expert opinion on the relatedness of his heart condition to his service, the department's regional office denied his claims. Dambach appealed again to the board seeking service-connection for his heart condition and a determination that 38 U.S.C. § 1154(b) was applicable to his case.

At the board hearing, Dambach explained that he had tonsillitis, rheumatic fever, and other infections, which resulted in myocarditis while he was serving in Vietnam, and that these illnesses caused his current heart condition, dilated cardiomyopathy with congestive heart failure. He also presented statements by four doctors in support of his claim.

Dambach also argued that section 1154(b), which requires the Department of Veterans Affairs to accept "satisfactory lay or other evidence" as sufficient proof of service-connection for any injury alleged to have been incurred in combat, regardless of whether official records exist proving such incurrence, should apply in his case. He claimed that this section applies even when there is a record of some in-service illness, and to both recorded and unrecorded medical problems. The board rejected Dambach's arguments finding that he had not demonstrated a combat-related injury.

Dambach appealed to the Court of Appeals for Veterans Claims, which affirmed-in-part. The court said that he had misconstrued section 1154(b) and that the board did not err in finding it inapplicable to him. Dambach asserts here that the Veterans Court erred in confirming the board's misinterpretation of section 1154(b). He additionally argues that this action was a final decision on the section 1154(b) issue that must be resolved before remanding the case to the board to establish the parties' evidentiary burdens.

Discussion

In view of the Court of Appeals for Veterans Claims' remand to the board, the government has moved to dismiss this appeal for lack of a final decision under 38 U.S.C. § 7292 (1994). Our jurisdiction is limited to review of final decisions of that court, which typically do not include remands because they are not final judgments. See, e.g.,Travelstead v. Derwinski, 978 F.2d 1244, 1247-49 (Fed. Cir. 1992). We do have jurisdiction, however, when there is a statutory interpretation that will affect the remand proceeding and that legal issue might evade our future review. See id. at 1248 (holding that when "the court rendered a 'decision' interpreting a statute . . . and compelling action of the Secretary, on remand, . . . [t]his 'decision' was a final disposition of the proceeding," and was appealable).

Here, the Veterans Court interpreted section 1154(b) and its applicability to the case, and then directed the board, on remand, to disregard the section 1154(b) contention. Because this interpretation will alter the evidentiary burdens for service- connection in the remand proceedings and the remand may make unreviewable the determination that section 1154(b) cannot be applied to a veteran with a service medical report, there is jurisdiction.

The government also moves to dismiss for lack of jurisdiction over the section 1154(b) issue. It correctly observes that this is a court of limited jurisdiction set out by Congress. See Livingston v. Derwinski, 959 F.2d 224, 225 (Fed. Cir. 1992). We have jurisdiction to review Court of Appeals for Veterans Claims decisions on "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 [court] in making the decision." 38 U.S.C. § 7292(a). Except for appeals presenting constitutional issues, we may not "review (A) a challenge to a factual determination or (B) a challenge to a law or regulation as applied to the facts of a particular case." Id. § 7292(d)(2). We also are required to "determine the applicability of [the statute's] terms to an action of the Secretary [of Veterans Affairs], and to 'compel action of the Secretary unlawfully withheld or unreasonably delayed.'" Travelstead, 978 F.2d at 1248 (citing 38 U.S.C.S. § 7261(a) (Law Co-op. Supp. 1992)).

Dambach argues that the Veterans Court misinterpreted section 1154(b) by refusing to apply it to any of his illnesses because there was documentation of some of his illnesses. The government responds that he challenges only factual determinations or the application of law to facts which is beyond our jurisdiction. The argument is untenable. This is straightforward statutory interpretation. We therefore have jurisdiction under 38 U.S.C. § 7292(a), and we review the Court of Appeals for Veterans Claims' statutory interpretation de novo. See Jones v. Brown, 41 F.3d 634, 637 (Fed. Cir. 1994).

Section 1154(b) states:

In the case of any veteran who engaged in combat with the enemy in active service with a military, naval or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran.

This provision is intended to lighten the evidentiary burden of a veteran who claims a disease or injury was incurred in or aggravated by combat service. See Jensen v. Brown, 19 F.3d 1413, 1416-17 (Fed. Cir. 1994). A three-step sequential analysis determines whether a combat veteran is entitled to service-connection. First, he must proffer "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996) (citing 38 U.S.C. § 1154(b)). Second, the proffered evidence must be "consistent with the circumstances, conditions, or hardships of such service." Id. Third, if the veteran satisfies the first two steps, the government must rebut the presumption of service-connection by "clear and convincing evidence to the...