Dyment v. Principi

• Citation: 287 F.3d 1377
• Decision Date: 24 April 2002
• Docket Number: No. 00-7075.,00-7075.
• Parties: Muriel C. DYMENT, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

287 F.3d 1377

Muriel C. DYMENT, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 00-7075.

United States Court of Appeals, Federal Circuit.

DECIDED: April 24, 2002.

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Michael P. Horan, Paralyzed Veterans of America, of Washington, DC, argued for claimant-appellant.

David B. Stinson, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were David M. Cohen, Director; and Bryant G. Snee, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel; and Martie Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, CLEVENGER, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

Muriel C. Dyment, the surviving spouse of a veteran, appeals from a decision of the Court of Appeals for Veterans Claims ("Veterans Court") affirming an order of the Board of Veterans' Appeals that denied her claim for dependency and indemnity compensation. The Veterans Court upheld the Board's determination that the lung condition that caused her husband's death was not service connected. We have jurisdiction to address some, but not all, of the issues Mrs. Dyment raises on appeal. Because we conclude that the Veterans Court has not committed reversible error with regard to any of the issues that we have jurisdiction to address, we affirm the judgment of the Veterans Court.

I

William G. Dyment served in the Navy from 1942 to 1948, in the Army from 1949 to 1952, and again in the Navy from 1958 to 1968, when he retired. In 1965, he reported chest pains, but no disease was diagnosed following a period of hospitalization. His separation examination in 1968 noted that his lungs and chest were normal and that a chest X-ray was essentially negative. There was no diagnosis of lung disease of any kind. In 1991, he was diagnosed with chronic interstitial fibrosis of the lungs. It was noted at that time that a 1980 chest X-ray had been clear, a 1989 X-ray had shown some bilateral interstitial disease, and that the 1991 X-ray revealed a marked increase in that disease. He died of end stage pulmonary fibrosis in 1992.

Mrs. Dyment subsequently filed a claim for dependency and indemnity compensation, contending that the disease that caused her husband's death was service connected. She asserted that his pulmonary condition was the result of exposure to asbestos during his service on naval vessels. The regional office of the Department of Veterans Affairs ("DVA") denied the claim, and she appealed to the Board. In a March 1995 decision, the Board remanded the case to the regional office for further development pursuant to the DVA's statutory duty to assist her in presenting her claim, see 38 U.S.C. § 5107 (1994). Along with other measures, the Board directed the regional office to obtain a medical opinion from a pulmonary specialist "as to whether it is at least as likely as not that presumed exposure to asbestos in service, caused or contributed to any disability that played a material causal role in the veteran's death."

A pulmonary specialist reviewed Mr. Dyment's medical records and concluded that it was unlikely that his disease was the result of asbestos exposure. In pertinent part, the specialist reported the following:

The chest radiographic findings reveal solely fibrosis, without any suggestion of pleural disease, which is not unheard of but is somewhat unusual in asbestosis. A high resolution CT scan of the chest confirmed the interstitial fibrosis and once again did not reveal pleural plaques. A lung biopsy which was obtained in 1991 during his initial pulmonary evaluation revealed fibrosis. It has since been stained specifically for asbestos bodies and none were found. Although asbestosis is usually associated with asbestos bodies in the tissue sections, it is conceivable that these might be missed due to a sampling error. His occupational history is not suggestive of a heavy exposure to asbestos. Although he had served on numerous Navy vessels over the years and specifically those of World War II vintage, there is no information that he had ever worked in a shipyard or took part in building or refitting of ships. Pictures are available showing that his sleeping quarters were beneath pipes, but it is not clear that those pipes were covered with asbestos or that this asbestos was disturbed in any way. I therefore conclude that this man had pulmonary fibrosis, but there is really no evidence that asbestos contributed to his disease. Certainly there is no history of exposure that could account for this severe disease and there is no evidence, either on the x-rays or in the tissue biopsy, of findings particularly suggestive of asbestos; however, it is reasonable to say that one cannot totally rule out the possibility that asbestos could have contributed to this patient's lung disease, but in balance, the overwhelming probability is that asbestos was not involved in this patient's disease.

Based on that report and a review of Mr. Dyment's service records, the regional office again denied service connection. Mrs. Dyment then appealed to the Board, which upheld the regional office's determination in March 1996. The Board noted that the pulmonary specialist had acknowledged that he could not totally rule out a relationship between Mr. Dyment's lung disease and asbestos exposure, but concluded that the "overwhelming probability" was that asbestos was not related to Mr. Dyment's disease. After reviewing the specialist's findings, the Board stated:

The veteran's service personnel records, as well as his service medical records, show that he was primarily a hospital man and store keeper and that he had several tours aboard ship. They do not, however, reveal any exposure to asbestos. Even assuming that he had such exposure in service, and that he had no exposure following service, neither his service medical records, nor those dated since 1980, reveal any residual lung disability. None of those records so much as mention the possibility of asbestos-related lung disease, even by history.

Mrs. Dyment then appealed to the Veterans Court, which affirmed the Board's decision denying compensation. The court first rejected Mrs. Dyment's claim that the DVA had failed in its duty to assist her in presenting her claim. The DVA had satisfied its duty, the court concluded, by obtaining Mr. Dyment's service medical records, his military personnel records, the findings of a lung biopsy and other procedures, and the opinion of the pulmonary specialist.

The court next rejected Mrs. Dyment's argument that the Adjudication Manual of the Veterans Benefits Administration, M21-1 ("Manual M21-1") created a presumption of exposure to asbestos for personnel such as Mr. Dyment, who served aboard World War II vintage Navy vessels. First, the court pointed out that by its terms Manual M21-1 "does not speak of a presumption," but merely alerts DVA rating officials to the facts that many Navy veterans were exposed to asbestos that was used in ship construction, and that insulation and shipyard workers "have been found to have a high incidence of asbestos exposure and a high `prevalence of disease.'" Second, the court stated that the Manual did not create a presumption of exposure to asbestos because the provisions on which Mrs. Dyment relied "do not give rise to enforceable substantive rights but merely contain statements of policy."

Finally, the court rejected Mrs. Dyment's argument that the Board's decision had to be overturned because the pulmonary specialist who examined Mr. Dyment's records had "failed to presume [Mr. Dyment's] exposure to asbestos, as the [Board] remand requested." The court concluded that because the Board's remand order requested that the specialist ultimately make a determination as to whether asbestos contributed to Mr. Dyment's death, the specialist "more than substantially complied with the Board's remand order."

II

In seeking reversal of the decision of the Veterans Court, Mrs. Dyment makes a number of arguments. We lack jurisdiction to address some of those arguments. With respect to the rest, we are satisfied that none requires reversal of the decision of the Veterans Court.

A

Mrs. Dyment's first contention is that the Veterans Court improperly rejected her argument that the pulmonary specialist failed to comply with the Board's remand order. The Veterans Court concluded that the specialist substantially complied with the Board's remand order. Although Mrs. Dyment contends that she is seeking a legal interpretation of the statute that defines the duties of the Secretary of Veterans Affairs, 38 U.S.C. § 303, the essence of her argument is simply a disagreement with the Veterans Court over whether the specialist adequately complied with the remand order. As such, Mrs. Dyment's argument challenges the decision of the Veterans Court on a factual matter, as to which this court does not have jurisdiction. 38 U.S.C. § 7292(a); see Stillwell v. Brown, 46 F.3d 1111, 1113 (Fed.Cir.1995). We therefore decline to address the merits of that claim.

B

Next, Mrs. Dyment argues that the Veterans Court violated 38 U.S.C. § 7261, the statute that authorizes it to review Board decisions, by affirming the Board's denial of service connection on grounds not found in the Board's opinion. According to Mrs. Dyment, the Board denied service connection because of the unfavorable medical opinion given by the pulmonary specialist, who did not presume Mr. Dyment's exposure to asbestos. She argues that the Veterans Court affirmed on a different ground — that Manual M21-1 did not create a presumption of asbestos exposure.

Again, we lack jurisdiction to address this argument. Our jurisdictional statute allows us to review "any interpretation [of a statute or regulation] that was relied on by the [Veterans] Court in...