Gambill v. Shinseki

• Decision Date: 13 August 2009
• Docket Number: No. 2008-7120.,2008-7120.
• Parties: Richard GAMBILL, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

576 F.3d 1307

Richard GAMBILL, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2008-7120.

United States Court of Appeals, Federal Circuit.

August 13, 2009.

Michael A. Morin, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of Washington, DC, argued for claimant-appellant. Mark A. Lippman, The Veterans Law Group, of LaJolla, California, for claimant-appellant.

Harold D. Lester, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Jeanne E. Davidson, Director, Todd M. Hughes, Deputy Director, and Elizabeth A. Holt, Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Martie S. Adelman, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Before BRYSON, LINN, and MOORE, Circuit Judges.

Opinion for the court filed PER CURIAM. Concurring opinions filed by Circuit Judge BRYSON and Circuit Judge MOORE.

PER CURIAM.

Richard Gambill served in the United States Army between 1969 and 1971. During his service, a trash barrel fell on his head, resulting in a one to two centimeter laceration on his scalp and an abrasion on his forehead. When he left the service, his separation examination was normal. In 1994 and 1995, Mr. Gambill was treated for bilateral cataracts. At that time, his physician told him it is possible for a blow to the head to cause cataracts. Thereafter, Mr. Gambill filed a claim for disability benefits with a regional office of the Department of Veterans Affairs ("DVA"). In his claim, he asserted that his cataracts were service-connected because they were caused by the blow to his head that he suffered during military service. Following a DVA consultation examination, the regional office denied his claim. Mr. Gambill then appealed to the Board of Veterans' Appeals. He waived his right to a hearing before the Board.

By regulation, the Board is authorized to request a medical opinion from a health care professional in the DVA's Veterans Health Administration ("VHA") whenever, in the Board's judgment, "medical expertise is needed for equitable disposition of an appeal." 38 C.F.R. § 20.901. The Board is also authorized to obtain a medical opinion from an independent medical expert if "expert medical opinion, in addition to that available within the Department, is warranted by the medical complexity or controversy involved in an appeal case." 38 U.S.C. § 7109(a).

In Mr. Gambill's case, the Board concluded that the examiner who conducted the consultation examination "did not adequately address the etiology of [Mr. Gambill's] bilateral cataracts including whether [his] bilateral cataracts were caused by an inservice blow to the head." The Board therefore requested an additional opinion from a VHA ophthalmologist "as to whether the veteran's bilateral cataracts and residuals thereof are as likely as not the result of an inservice head injury." The ophthalmologist did not examine Mr. Gambill, but provided a report containing a medical opinion. The report summarized Mr. Gambill's medical history, listed the risk factors for the development of cataracts, and then stated, "In a search of the literature, I could find no reports suggesting head trauma was a cause or an associated risk factor in the development of cataracts." The ophthalmologist added that "certainly direct eye trauma is an associated risk factor for cataract development [but] the patient denies ocular trauma."

Pursuant to regulation, the Board provided Mr. Gambill with a copy of the ophthalmologist's opinion and advised him that he had 60 days "to review the medical opinion and send us any additional evidence or argument you may wish to make." Mr. Gambill availed himself of that opportunity by submitting a statement in support of his contention that the blow to his head during service had caused his cataracts. Mr. Gambill provided excerpts from several articles found on the Internet. One stated that "cataract formation after non-perforating injuries such as contusion or concussion may occur without any damage to the lens capsule." A second identified "trauma (e.g., head injury or puncture wound)" as among the causes of cataracts. In addition, Mr. Gambill submitted a letter from his physician stating that "[i]t is possible that a blow to the head can contribute to the development of cataracts and retinal detachments." Mr. Gambill waived his right to have his case remanded to the regional office for review of the evidence he had submitted and instead asked that the Board proceed with the adjudication of his appeal.

After reviewing all the evidence before it, the Board denied service connection for Mr. Gambill's cataracts. The Board recognized that Mr. Gambill had submitted evidence, including statements from two physicians, that head trauma could cause cataracts, but it determined that nothing in the record suggested that Mr. Gambill's cataracts were caused by his head injury. With respect to the physicians' letters, the Board noted that the physicians "did not specifically state that the veteran's cataracts developed because of his inservice head injury," and that to the extent the letters were offered to establish that Mr. Gambill developed cataracts as a result of his in-service head injury, "they are insufficient in that the doctors did not specifically address the circumstances in this case."

The Board reached the same conclusion with respect to the materials from the Internet that Mr. Gambill submitted in support of the proposition that head trauma can cause cataracts, noting that those materials "were not prepared with consideration of the circumstances of this case." The Board therefore ruled that "[i]t would be speculative to find that the veteran's cataracts in this case, first noted in the 1990s, were the result of an inservice head injury, based on the simple fact that head injuries can possibl[y] cause cataracts." Even if the VHA ophthalmologist was in error as to whether head trauma can cause cataracts, the Board explained, "[t]here simply is no evidence of record, to include the medical treatise excerpts or [Mr. Gambill's] private physicians' statements ... which actually makes this nexus connection. ... The objective evidence of record does not show a relationship between the veteran's cataracts and his inservice head injury, and it does not provide for a favorable result in this case." The Board added that the lack of evidence linking Mr. Gambill's cataracts to his in-service head injury was "particularly dispositive as the first medical evidence of record of cataracts was not until many years after service separation."

Mr. Gambill appealed to the Court of Appeals for Veterans Claims ("the Veterans Court"). In his brief to that court, he asserted that the DVA had violated his rights under the Due Process Clause of the Fifth Amendment to the Constitution by not allowing him to submit written interrogatories to the VHA ophthalmologist and by failing to advise him that he had the right to do so.

The Veterans Court affirmed. It rejected Mr. Gambill's due process claim on the ground that an applicant for DVA disability benefits does not have a sufficient property interest in the prospect of receiving benefits to trigger the procedural protections of the Due Process Clause. Instead, the court ruled that "creating a procedural right in the name of fair process principles [for applicants for DVA disability benefits] is primarily based on the underlying concept of the VA adjudicatory scheme, not the U.S. Constitution." Gambill v. Peake, No. 06-1943, 2008 WL 1883915, at *2 (Ct. Vet.App. Apr. 28, 2008), quoting Prickett v. Nicholson, 20 Vet.App. 370, 382 (2006). With respect to the Board's authority to conduct its own evidentiary development by requesting a medical opinion, the court stated that the Board "must ensure that it provides the appellant fair process in the adjudication of his claim," and that "in rendering a decision on a claim, on any evidence developed or obtained by it, [the Board] must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity for the claimant to respond to it," including the right to submit additional evidence. Id., quoting from Thurber v. Brown, 5 Vet.App. 119, 126 (1993). In this case, the court held, the Board gave Mr. Gambill notice of the VHA ophthalmologist's opinion and an opportunity to submit additional evidence in response, which satisfied the requirements of fairness in the adjudication of his claim. Mr. Gambill then appealed to this court.

I

Mr. Gambill argues that the Due Process Clause of the Fifth Amendment requires that all veterans who apply for disability benefits must be afforded the opportunity to confront adverse medical evidence, at least through the use of interrogatories. In addition, he contends, they must be given notice of that right.

Although the Supreme Court has declined to address the question whether due process protections apply to the proceedings in which the DVA decides whether veteran-applicants are eligible for disability benefits, see Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 312 320 n. 8, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985), we have recently held that the Due Process Clause applies to such proceedings. See Cushman v. Shinseki, No. 2008-7129, 576 F.3d 1290, 2009 WL 2448505 (Fed.Cir. Aug.12, 2009). Accordingly, we turn to the question whether Mr. Gambill's due process rights were violated by the failure to provide him with the right to serve interrogatories on the VHA ophthalmologist and to notify him that he had that right.

II

By regulation, the Board of Veterans' Appeals provides a claimant with notice that a VHA opinion has been requested and provides a copy of the opinion when...