Fagan v. Shinseki

• Decision Date: 22 July 2009
• Docket Number: No. 2008-7112.,2008-7112.
• Citation: 573 F.3d 1282
• Parties: Timothy W. FAGAN, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

573 F.3d 1282

Timothy W. FAGAN, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2008-7112.

United States Court of Appeals, Federal Circuit.

July 22, 2009.

Kathleen A. Daley, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of Washington, DC, argued for claimant-appellant. With her on the brief was J. Michael Jakes.

Jane W. Vanneman, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Martin J. Sendek, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Before MICHEL, Chief Judge, SCHALL and LINN, Circuit Judges.

SCHALL, Circuit Judge.

Timothy W. Fagan seeks reversal of the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") affirming the Board of Veterans' Appeals ("Board's") denial of his claim for service connection benefits for bilateral hearing loss. Fagan v. Peake, No. 06-1327, 2008 WL 2130166 (Vet.App. Feb. 29, 2008) (unpublished table decision) ("Veterans Court Decision"). Mr. Fagan argues that the Veterans Court incorrectly interpreted the benefit of the doubt doctrine codified at 38 U.S.C. § 5107(b) and, as a result, improperly failed to consider statements in a medical examiner's report as "evidence." Because the Veterans Court did not misinterpret § 5107(b), we affirm.

BACKGROUND

I.

Mr. Fagan served on active duty in the U.S. Marine Corps from September 1968 to August 1970. Prior to entering service, he was exposed to loud noise from recreational hunting. Upon entering service, Mr. Fagan was given two audiogram tests, both of which revealed that he had "moderately severe" hearing loss in his left ear.¹ During his service in Vietnam, Mr. Fagan was further exposed to loud noise, specifically, from explosions, airplanes, helicopters, and wind. There is no evidence, however, that Mr. Fagan complained of hearing problems or requested treatment for hearing loss during service. Upon exiting service, Mr. Fagan was not administered another audiometric hearing test because an audiometer was not available. Rather, he was administered a "whispered voice" test, which indicated that he did not suffer from hearing loss in either ear, even though his pre-service audiogram test indicated preexisting left ear hearing loss.

After discharge in 1970, Mr. Fagan continued to participate in activities involving loud noise, such as hunting, and using weed eaters, leaf blowers, and chainsaws. Although exposed to loud noise during these activities, Mr. Fagan did not wear hearing protection until approximately 2002. Mr. Fagan testified that he failed a hearing test, "in one or both ears," when he attempted to enter the Connecticut Army National Guard in 1971 or 1972. There is no further evidence of this hearing test, however, despite the Veterans' Administration ("VA") Regional Office's ("RO") attempts to recover the relevant records from the Connecticut Adjutant General's Office and the National Personnel Records Center. Mr. Fagan further testified that he was tested a second time and was subsequently admitted to the Connecticut Army National Guard. There is no evidence of private treatment records related to Mr. Fagan's hearing loss. Except for lay statements made in 2004 from friends and relatives about their past recollection of Mr. Fagan's hearing ability, there is no other evidence related to his hearing loss until 2002, when he underwent a medical examination.

II.

In 2002, Mr. Fagan filed his claim with the RO for service connection relating to bilateral hearing loss. The VA examined Mr. Fagan on October 15, 2003, which confirmed that he has bilateral hearing loss. During Mr. Fagan's VA medical examination, the medical examiner noted his in-service and post-service noise exposure, as well as testimony from his relatives concerning hearing loss. The examiner also acknowledged that, although Mr. Fagan did not exhibit signs of hearing loss during the "whisper" test at discharge from the military, a "`whisper' test does not provide frequency or ear specific information and therefore does not rule out, or confirm, high frequency hearing loss." The examiner concluded that

[d]ue to the veteran's history of post-military noise exposure, and without audiometric information obtained at the time of his release from service or shortly thereafter, it is not possible to determine if the further decrease in high frequencies for the left ear and the high frequency hearing loss in the right ear is related to military service.

On December 17, 2003, the VA denied Mr. Fagan's claim, determining that his further hearing loss was not service connected.

Mr. Fagan appealed to the Board in February 2004. On January 5, 2006, the Board denied his claim for service connection. Fagan v. Peake, Docket No. 04-34,385 (Bd.Vet.App. Jan. 5, 2006) ("Board Decision"). In its decision, the Board explicitly considered the testimony from Mr. Fagan's relatives, the occurrences of loud noise exposure during service, and Mr. Fagan's testimony about failing a Connecticut Army National Guard hearing test shortly after leaving the service. Id., slip op. at 7-8. The Board also took into account, however, (i) that "there is no medical evidence from either his period of service or shortly thereafter showing that [Mr. Fagan] sustained any loss of hearing acuity in service," (ii) the fact that the earliest post-service record of hearing loss was thirty years after Mr. Fagan's discharge, and (iii) that Mr. Fagan "had not previously sought treatment for his hearing loss with either the VA or a private medical provider" until 2002. Id. at 8. Ultimately, the Board concluded that, "after considering all the evidence[,] ... the preponderance of the evidence [was] against [Mr. Fagan's] claim" and that "the greater weight of the evidence [was] against the conclusion that the criteria to establish service connection [were] met." Id. at 9.

Mr. Fagan appealed to the Veterans Court, arguing that the positive and negative evidence pertaining to a nexus between his further hearing loss and service was in equipoise and, therefore, the "Board was required to grant Mr. Fagan the benefit of the doubt" pursuant to § 5107(b). See Veterans Court Decision, 2008 WL 2130166, at *2. On February 29, 2008, the Veterans Court rejected Mr. Fagan's argument and affirmed the decision of the Board. Id. at *1. In doing so, the court first pointed out that, because the Board correctly found that Mr. Fagan's hearing loss constituted a current compensable disability, the sole issue was whether there was sufficient evidence establishing "a nexus between his current hearing disability and an injury, event, or disease in service." Id. at *2. In that regard, the court stated that "[t]his appeal presents a single question—the interpretation and application of the benefit of the doubt doctrine codified at 38 U.S.C. § 5107(b)." Id. at *1. The court then enumerated the pertinent evidence, such as Mr. Fagan's pre and post-service hearing tests, his pre and post-service exposure to noise, and the VA medical examiner's report. Id. at *1-2. Regarding the VA medical examiner's statements about being unable to determine whether Mr. Fagan's further hearing loss was related to military service, the court stated that "the examiner did not render an opinion and her remarks constitute what may be characterized as `non-evidence.'" Id. at *3 (internal quotations marks omitted) (quoting Perman v. Brown, 5 Vet.App. 237, 241 (1993)). Thus, the Veterans Court did not find sufficient evidence linking Mr. Fagan's further bilateral hearing loss to service and, consequently, ruled that the evidence regarding a nexus was not in equipoise. Veterans Court Decision, 2008 WL 2130166, at *3. Accordingly, the court held that the benefit-of-the-doubt doctrine was inapplicable. Id.

DISCUSSION

I.

On appeal, Mr. Fagan argues that the Veterans Court "erred as a matter of law in interpreting `evidence' in § 5107(b) too narrowly" and, as a result, improperly excluded the evidence in the VA medical examiner's report. See Appellant's Br. 13. Responding, the government contends that the Veterans Court did not interpret § 5107(b) to bar relevant evidence. Rather, it merely found, after considering all pertinent evidence, that the benefit-of-the-doubt doctrine was not applicable because the evidence for and against Mr. Fagan was not in equipoise.

Pursuant to 38 U.S.C. § 7292(c), we have limited jurisdiction to review decisions of the Veterans Court. Boggs v. Peake, 520 F.3d 1330, 1333 (Fed.Cir.2008). Specifically, we possess "exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof ... and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c). We also have jurisdiction to review decisions of the Veterans Court on issues of law. Jordan v. Nicholson, 401 F.3d 1296, 1297 (Fed.Cir.2005). However, "[e]xcept to the extent that an appeal ... presents a constitutional issue, [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." 38 U.S.C. § 7292(d)(2). Thus, we only have jurisdiction over Mr. Fagan's appeal to the extent that it raises issues of law. To the extent that his appeal raises issues of fact or issues of law applied to fact, we do not have jurisdiction to consider his claims.

In considering any issues of law properly raised on appeal, we review de novo the decision of the Veterans Court. See Boggs, 520 F.3d at 1334; Summers v. Gober, 225 F.3d 1293, 1295 (...