Hesley v. West Jr.

• Decision Date: 12 May 2000
• Parties: (Fed. Cir. 2000) BURKE HENSLEY, Claimant-Appellant, v. TOGO D. WEST, JR., Secretary of Veterans Affairs, Respondent-Appellee. 99-7029 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1255

212 F.3d 1255 (Fed. Cir. 2000)

BURKE HENSLEY, Claimant-Appellant, v. TOGO D. WEST, JR., Secretary of Veterans Affairs, Respondent-Appellee.

99-7029

United States Court of Appeals for the Federal Circuit

DECIDED: May 12, 2000

Appealed from: United States Court of Appeals for Veterans Claims Judge Ronald M. Holdaway

Barton F. Stichman, National Veterans Legal Services Program, of Washington, DC, argued for claimant-appellant. With him on the brief was Edward B. Myers.

Russell A. Shultis, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were David W. Ogden, Acting Assistant Attorney General, David M. Cohen, Director, and Kirk T. Manhardt, Assistant Director. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel, and Martie Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

Before PLAGER, LOURIE, and CLEVENGER, Circuit Judges.

PLAGER, Circuit Judge.

The meaning of "a well grounded claim" as that term is used in the law governing veterans benefits is the issue before the court. Burke Hensley appeals from a decision of the United States Court of Appeals for Veterans Claims,¹ Hensley v. West, No. 96-978 (CAVC Sept. 22, 1998), which dismissed his case for failure to state a well grounded claim. Because the basis on which the Court of Appeals for Veterans Claims decided the case is not consistent with the statutes and rules governing its authority, we vacate the decision of the Court of Appeals for Veterans Claims and remand for further proceedings consistent with this opinion.

BACKGROUND

Veteran Burke Hensley served as an Army paratrooper during World War II. In January 1944, he was ordered to participate in ten rounds of testing of mustard gas and Lewisite. After the tests, he was hospitalized, then given a disability discharge from the Army. He was diagnosed with service-connected bronchial asthma and severe anxiety and psychoneurosis, and these service-connected awards are still in effect.

In 1974, Mr. Hensley was also diagnosed with heart disease. In 1992, Mr. Hensley filed a claim with the Department of Veterans Affairs ("DVA") for a service connection for his heart disease, based on his in-service exposure to mustard gas. As evidence of the nexus between the heart disease and his exposure, he presented a 1986 medical report from Dr. Jeffery A. Rey, indicating that Mr. Hensley's lung disease could have stressed his heart, but stating that he could not connect them "unequivocally"; a 1986 report from Dr. Ahsan Qazi, indicating that Mr. Hensley's angina was aggravated by his anxiety neurosis; and a 1987 report from Dr. Timothy Howe, indicating that obstruction of the lungs could have an impact on Mr. Hensley's heart condition.

In addition, Mr. Hensley submitted a DVA report entitled Veterans at Risk: The Health Effects of Mustard Gas and Lewisite.² The report stated, among other things, that a connection between heart disorders and toxic gas exposure could not be ruled out, and suggested that oxygen deprivation as a consequence of exposure-induced lung disorders might result in degeneration of heart muscle and thus eventually lead to abnormal heart action.

None of the medical reports stated that the doctor had directly evaluated Mr. Hensley sufficiently or had sufficient access to his prior records to conclude with certainty that his heart disease was linked to his exposure. However, at a minimum all of the medical reports raised the question whether a complete review of Mr. Hensley's record, coupled with further examinations, might establish a link between his heart condition and his lung condition or his anxiety neurosis, which were in turn linked to his toxic gas exposure.

Mr. Hensley maintained that his claim was further supported by two DVA regulations. First, 38 C.F.R. § 3.316(a)³ provides a conclusive presumption that lung disorders are service-connected when the veteran was exposed to mustard gas in service. Second, 38 C.F.R. § 3.310(a) provides that a secondary disability proximately due to or the result of a service-connected disability is deemed to be service-connected. Under these regulations, Mr. Hensley argued, his lung disease is presumptively service-connected (§ 3.316(a)), his heart disease is linked to his lung disease (the medical evidence), and therefore his heart disease is service-connected (§ 3.310(a)).

The DVA Regional Office denied the claim, and Mr. Hensley appealed to the Board of Veterans Appeals ("BVA"). The BVA reviewed the diseases listed in 38 C.F.R. § 3.316(a), designated as presumptively linked to mustard gas exposure, and noted that heart disease was not among them. The BVA concluded that any disease not listed in § 3.316(a) was presumptively not linked to exposure, and therefore held that the claim was not well grounded:

Without commenting on the merits of his claim, the Board emphasizes that service connection for heart disease based upon exposure to mustard gas is not contemplated within the applicable regulation. Further analysis in this regard, therefore, is not warranted.

In re Hensley, BVA 93-28192, at 5 (1996).

Mr. Hensley appealed the BVA's decision that his claim was not well grounded to the Court of Appeals for Veterans Claims, which sustained the BVA. However, the Court of Appeals for Veterans Claims recognized that the BVA's application of the regulation was improper. The Court noted that the cited regulation established a presumption that the listed diseases were caused by mustard gas, but it did not foreclose the alternative route of directly demonstrating service connection for other unlisted diseases asserted to be caused by mustard gas. See Hensley, slip op. at 6. The Court of Appeals for Veterans Claims then reviewed "de novo" whether the claim was well grounded, and found that the claim was not well grounded as a matter of law. See id. at 4-6. The Court of Appeals for Veterans Claims then held that the BVA's error was therefore not prejudicial to Mr. Hensley. See id. at 6.

The Court of Appeals for Veterans Claims purported to use the test for a well grounded claim endorsed by this court in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). See Hensley, slip op. at 4. Under Epps,

a "well grounded" claim is:

[A] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in[-]service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required.

Epps [v. Brown], 9 Vet. App. [341,] 343-44 [(1996)] (citations and quotations omitted). We adopt this definition as one that properly expresses the meaning of the statute.

126 F.3d at 1468.

The Court of Appeals for Veterans Claims found that Mr. Hensley had submitted evidence showing (1) heart disease and (2) exposure to mustard gas in service, but he had failed to establish (3) any nexus between them. See Hensley, slip op. at 4. In reaching this conclusion, the Court of Appeals for Veterans Claims addressed Mr. Hensley's asserted evidence of nexus and rejected it.

Dr. Rey's and Dr. Qazi's diagnoses were rejected because, according to the Court of Appeals for Veterans Claims, these doctors wrongfully believed that the mustard gas had caused Mr. Hensley's lung problems and anxiety neurosis. The Court of Appeals for Veterans Claims found that these problems predated his exposure to mustard gas. See id. at 5-6. Dr. Howe's diagnosis was rejected because his evaluation of Mr. Hensley was not complete and he "did not explicitly state that [Mr. Hensley's] exposure to mustard gas is related to his present heart condition." Id. at 6. The Veterans at Risk report was dismissed because Mr. Hensley impermissibly "self-diagnosed" his heart disease; he needed a medical opinion if he wanted to use the report. See id. at 5. Having rejected all the nexus evidence, the Court of Appeals for Veterans Claims found Mr. Hensley's claim not well grounded, and therefore dismissed it. See id. at 6.

Mr. Hensley now appeals the Court of Appeals for Veterans Claims's dismissal of his claim. Mr. Hensley asserts that Epps was incorrectly decided. He particularly attacks the holding that the DVA's duty to assist under 38 U.S.C. § 5107(a)⁴ does not attach until the veteran establishes a well grounded claim. He asserts that the DVA should have helped him develop his claim, which could have cured many of the defects in his nexus evidence, defects on which the Court of Appeals for Veterans Claims relied in dismissing his claim. Mr. Hensley also asserts that the Court of Appeals for Veterans Claims improperly made de novo findings on facts that were not addressed by the BVA when it held that his stated medical problems predated his exposure to mustard gas. Finally, Mr. Hensley asserts that even if the standard for a well grounded claim as set forth in Epps is correct, the Court of Appeals for Veterans Claims's application of the standard to him exceeded the standard applied to other veterans and was thus contrary to law and a denial of due process.

DISCUSSION

I. Standard of Review

This court has jurisdiction to review a challenge to the validity or interpretation of a statute or regulation relied upon by the Court of Appeals for Veterans Claims. See 38 U.S.C. § 7292. In so doing, we review independently and without deference the Court of Appeals for Veterans Claims's interpretations of statutory provisions and regulations. See 38 U.S.C. § 7292(a), (c). This court has the...