George v. Wilkie
| Decision Date | 04 January 2019 |
| Docket Number | 16-2174 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | Kevin R. George, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
On Appeal from the Board of Veterans' Appeals
Kenneth M. Carpenter, of Topeka, Kansas, was on the brief for the appellant.
Meghan Flanz, Interim General Counsel; Mary Ann Flynn, Chief Counsel; Richard A. Daley, Deputy Chief Counsel; and Mark D Gore, all of Washington, D.C., were on the brief for the appellee.
Before DAVIS, Chief Judge, and BARTLEY and MEREDITH, Judges.
U.S Marine Corps veteran Kevin R. George appeals through counsel a March 1, 2016, Board of Veterans' Appeals (Board) decision that found no clear and unmistakable error (CUE) in a September 1977 Board decision that denied entitlement to VA disability compensation benefits for schizophrenia. Record (R.) at 2-14. On September 6, 2017, the Court issued a memorandum decision affirming the Board's decision. On September 19, 2017, Mr. George filed a motion for reconsideration. On October 27, 2017, the matter was referred to a panel of the Court. On November 15, 2017, the panel granted Mr. George's motion for reconsideration, withdrew the September 2017 memorandum decision, ordered the Secretary to respond to Mr. George's motion for reconsideration, and permitted Mr. George to reply to the Secretary's response. After considering the briefs, the motion for reconsideration, the Secretary's response to the motion, and Mr. George's reply, the Court will affirm the Board's March 2016 decision.
In June 1975, Mr. George enlisted in the U.S. Marine Corps. A week after enlistment, he was hospitalized and diagnosed with an acute situational reaction. R. at 6; see R. at 1172, 1289. In July 1975, Mr. George was discharged from the hospital and ultimately placed in a training platoon. The following month, a psychiatrist diagnosed Mr. George with paranoid schizophrenia. An August 1975 Medical Board Report confirmed the schizophrenia diagnosis, found that his condition preexisted service and was aggravated by service, and recommended referral to the Central Physical Evaluation Board for discharge. In contrast, the Physical Evaluation Board found that his condition preexisted service but was not aggravated by service. Mr. George was discharged from service in September 1975.
In December 1975, Mr. George filed a claim for benefits contending that his schizophrenia was aggravated by his military service. A May 1976 regional office (RO) decision denied his claim because his condition existed prior to service and there was an acute exacerbation but no permanent aggravation during service. In September 1977, the Board denied Mr. George's claim because his condition existed prior to service and was not aggravated during service.
In December 2014, through current counsel, Mr. George filed a motion to revise the September 1977 Board decision on the basis of CUE. Mr. George alleged that the Board failed to correctly apply 38 U.S.C. § 311, [1] as VA did not rebut the presumption of sound condition with clear and unmistakable evidence that his condition was not aggravated by service. R. at 593.
In the March 2016 decision on appeal, the Board found no CUE in the September 1977 Board decision. The 2016 Board noted that the September 1977 Board "in conducting its presumption of soundness analysis under 3.304(b) (1977) . . . was not required to find clear and unmistakable evidence that the disability was not aggravated by service." R. at 5. The Board further acknowledged that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that section 1111, the presumption of soundness statute, requires clear and unmistakable evidence that a condition both existed prior to service and was not aggravated during service, see Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), but stated that "judicial decisions that formulate new interpretations of the law subsequent to a VA decision cannot be the basis of a valid CUE claim." R. at 6. Relying on Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005), the Board explained that the interpretation of the presumption of sound condition that the Federal Circuit Id.
In its 2016 decision, the Board discussed the evidence before the Board in September 1977 and concluded that there was evidence that Mr. George's schizophrenia existed prior to service, and conflicting evidence as to whether his condition was aggravated by service. The Board noted that the Medical Board had concluded that Mr. George's condition had its onset prior to service and that his disability was aggravated by service. R. at 8. In contrast, the Board pointed to the August 1975 "Physical Evaluation Board Proceedings and Findings" form stating that Mr. George's condition preexisted service and was not aggravated by service.
The 2016 Board conceded that the September 1977 Board did not discuss the presumption of soundness statute, 38 U.S.C. § 311 (1977), discuss its implementing regulation, 38 C.F.R. § 3.304(b) (1977), or explain how there was clear and unmistakable evidence that Mr. George's condition existed prior to service and was not aggravated by service. R. at 10. The 2016 Board stated, however, that even though the September 1977 Board erred, the error was not outcome determinative "because the Board nonetheless considered all relevant evidence of record at the time of its September 1977 decision." R. at 11. The 2016 Board concluded that Mr. George's allegation of CUE in the September 1977 decision is simply a disagreement with how the Board in 1977 weighed the evidence, which does not constitute CUE.
On appeal, Mr. George argues that the Board in March 2016 erred in finding that, under 38 C.F.R. § 3.304(b) (1977), the Board in September 1977 "was not required to find clear and unmistakable evidence that the disability was not aggravated by service." R. at 5. He contends that his CUE motion specifically challenged the application of section 311, a statute, and not the VA regulation in effect in 1977. Mr. George further points out that when a court interprets a statute, its interpretation is a statement of what the law has always been, which he argues renders the Board's dismissal of Wagner improper. See Appellant's Brief (Br.) at 5. He asserts that the 2016 Board's reliance on Jordan is misplaced because that case does not address "whether the court's interpretation of the statutory presumption of soundness had a retroactive effect on requests for revisions based on an allegation of [CUE] due to the Board's failure to correct[ly] apply the statute, notwithstanding what the VA's regulatory interpretation of the statute may have been." Id. at 6. In support of this argument, Mr. George relies on the Federal Circuit's decision in Patrick v. Shinseki, 668 F.3d 1325 (Fed. Cir. 2011).
The Secretary agrees that the 2016 Board erred in stating that the 1977 Board, "in conducting its presumption of soundness analysis under 3.304(b) (1977)[, ] . . . was not required to find clear and unmistakable evidence that the disability was not aggravated by service." R. at 5. Further, the Secretary recognizes that the 2016 Board also erred in relying on Jordan, 401 F.3d at 1288-89. The Secretary explains that Jordan speaks only to an allegation of CUE based on a retroactive effect of a regulation's invalidity and the issue here is an allegation of CUE based on the Board's failure to properly apply the statute.
Despite the Board's error, the Secretary contends that it is evident from the decision that the 2016 Board conducted the proper analysis, because it recognized that the Board in 1977 was "bound by the requirement that there be clear and unmistakable evidence on the aggravation prong of the analysis." Secretary's Br. at 8. The Secretary argues for the affirmance of the March 2016 Board decision because Mr. George did not demonstrate that the Board's error in articulating an incorrect evidentiary standard in 1977 would have resulted in a manifestly changed outcome. The Secretary asserts that the 2016 Board explained that there was evidence before the Board in 1977 rebutting both prongs of the presumption of soundness, that is, evidence that Mr. George had a preexisting condition and that his condition was not aggravated by service. See Secretary's Br. at 10 (citing R. at 1282-84, 1289, 1294). Accordingly, the Secretary contends that the 2016 Board properly found no CUE in the 1977 Board decision.
Mr. George argues that there was CUE in the September 1977 Board decision because the Board misapplied the statutory presumption of soundness. He asserts that, had the presumption of soundness been correctly applied, VA would have been required to show by clear and unmistakable evidence that his condition existed prior to service and was not aggravated by service. Before addressing Mr. George's arguments, the Court will briefly discuss the statutory presumption of soundness, the statute and regulation providing for revision of Board decisions on the basis of CUE, and the Federal Circuit's decisions in Wagner, Jordan, and Patrick, which provide the context to Mr. George's arguments.
The presumption of soundness statute, in 1977, as today, stated:
[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or...
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