Jones v. McDonough

• Decision Date: 31 March 2022
• Docket Number: 20-7282
• Parties: Lisa Jones, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee.
• Court: United States Court of Appeals For Veterans Claims

Lisa Jones, Appellant,
v.
Denis McDonough, Secretary of Veterans Affairs, Appellee.

No. 20-7282

United States Court of Appeals For Veterans Claims

March 31, 2022

Pursuant to U.S. Vet.App. R. 30(a), this action may not be cited as precedent.

Max Farris, Esq. VA General Counsel.

Before GREENBERG, Judge.

MEMORANDUM DECISION

GREENBERG, Judge.

Lisa Jones, widow of Marine Corps veteran Ben Jones, Jr., appeals through counsel a June 24, 2020, Board of Veterans' Appeals decision that denied service connection for (1) right shoulder tendonitis, to include as secondary to service-connected left ulnar neuropathy; and (2) a right elbow condition, to include as secondary to service-connected left ulnar neuropathy. Record (R.) at 5-10. The appellant argues that the June 2018 VA examination was inadequate because it failed to address a legal theory of entitlement and the veteran's relevant medical history. Appellant's Brief at 6-18. The appellant further argues that the Board provided an inadequate statement of reasons or bases because it failed to explain (1) which issues the Board deemed the veteran and the appellant not competent to address; (2) why it found the June 2018 VA exam probative; and (3) why it did not obtain a medical opinion addressing whether the veteran's right elbow and shoulder disabilities were caused or aggravated by the veteran's overcompensating for the limited use of his left hand and arm. Id. For the following reasons, the Court will set aside the June 2020 Board decision and remand the matters for further development and readjudication.

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I.

The Veterans Administration was established in 1930 when Congress consolidated the Bureau of Pensions, the National Home for Disabled Volunteer Soldiers, and the U.S. Veterans' Bureau into one agency. Act of July 3, 1930, ch 863, 46 Stat. 1016. This Court was created with the enactment of the Veterans' Judicial Review Act(VJRA) in 1988. See Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). Before the VJRA, for nearly 60 years VA rules, regulations, and decisions lived in "splendid isolation," generally unconstrained by judicial review. See Brown v. Gardner, 513 U.S. 115, 122 (1994) (Souter, J.).

Yet, the creation of a special court solely for veterans is consistent with congressional intent as old as the Republic. Congress first sought judicial assistance in affording veterans relief when it adopted the Invalid Pensions Act of 1792, which provided "for the settlement of the claims of widows and orphans . . . and to regulate the claims to invalid pensions," for those injured during the Revolutionary War. Act of Mar. 23, 1792, ch. 11, 1 U.S. Stat 243 (1792) (repealed in part and amended by Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793)). The act, though magnanimous, curtailed the power of the judiciary, by providing the Secretary of War the ability to withhold favorable determinations to claimants by circuit courts if the Secretary believed that the circuit court had erred in favor of the soldier based on "suspected imposition or mistake." See id.

Chief Justice John Jay^[1] wrote a letter^[2] to President George Washington on behalf of the Circuit Court for the District of New York^[3] acknowledging that "the objects of this act are

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exceedingly benevolent, and do real honor to the humanity and justice of Congress." See Hay burn's Case, 2 U.S. (2 Dall.) 409, 410 a, 1 L.Ed. 436 (1792). Jay also noted that "judges desire to manifest, on all proper occasions and in every proper manner their high respect for the national legislature." Id.

This desire to effect congressional intent favorable to veterans has echoed throughout the Supreme Court's decisions on matters that emanated from our Court. See Shinseki v. Sanders, 556 U.S. 396, 416, 129 S.Ct. 1696, 1709 (2009) (Souter, J., dissenting) ("Given Congress's understandable decision to place a thumb on the scale in the veteran's favor in the course of administrative and judicial review of VA decisions"); see also Henderson v. Shinseki, 562 U.S. 428, 440, 131 S.Ct. 1197, 1205 (2011) (declaring that congressional solicitude for veterans is plainly reflected in "the singular characteristics of the review scheme that Congress created for the adjudication of veterans 'benefits claims," and emphasizing that the provision "was enacted as part of the VJRA [because] that legislation was decidedly favorable to the veteran"). In the words of Justice Paterson, "[J]udges may die, and courts be at an end; but justice still lives, and, though she may sleep for awhile, will eventually awake, and must be satisfied." Penhallow v. Doane's Adm'r, 3 U.S. 54, 79(1795).

II.

Justice Alito^[4] observed in Henderson v. Shinseki that our Court's scope of review is "similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706." 562 U.S. at 432 n.2 (2011); see 38 U.S.C. § 7261. "The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court." 38 U.S.C. § 7254. The statutory command that a single judge^[5] may issue a binding

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decision is "unambiguous, unequivocal, and unlimited," see Conroy v. Aniskoff 507U.S. 511, 514 (1993). The Court's practice of treating panel decisions as "precedential" is unnecessary, particularly since the Court's adoption of class action litigation. See Wolfe v. Wilkie, 32 Vet. App.1 (2019) (order), rev'd sub nom. Wolfe v. McDonough, ___ F.4^th ___, No. 2020-1958, 2022 WL 803395 (Fed. Cir. Mar. 17, 2022). We cite decisions from our Court merely for their guidance and persuasive value.

III.

The veteran served on active duty in the U.S. Marine Corp from June 1981 to June 1984 as an anti-tank assaultman. R. at 218 (DD Form 214). The veteran earned many medals and commendations for his service, including a Letter of Appreciation; two Meritorious Masts; a Sea Service Deployment Ribbon with one service star; and a Marksman-Grade Marksmanship Qualification badge with the rifle. Id.

IV.

In May 2012, the veteran applied for disability benefits seeking service connection for (1) a left shoulder and left collarbone condition and (2) a right shoulder and right elbow condition, as secondary to his left shoulder and left collar bone condition. R. at 1090.

In September 2012, the veteran underwent a VA elbow and forearm conditions examination. R. at 836-47. The veteran reported that he (1) first injured his left shoulder and clavicle in 1983 while repelling down the side of a cliff in the Philippines, R. at 837; (2) began to have a gradual onset of pain and stiffness in his right shoulder that began in the mid-1980s, which he attributed to overcompensating for his left shoulder, id.; and (3) first noticed a gradual onset of right lateral elbow pain in January 1984 or February 1984, but did not see a doctor for this condition until 2004 or 2005, at which point he was diagnosed with ulnar neuropathy and a torn "inner tendon." R. at 838. The veteran further reported that a doctor told him he "overworked" his right shoulder, R. at 837, and he had undergone three surgeries to repair his right elbow condition. R. at 838. The appellant described suffering from dull to sharp "spasm-like" pain in the bilateral shoulders occurring every other day, that lasted in duration from several minutes to greater than

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24 hours; as well as dull, sharp, and burning constant pain in his right elbow. R. at 837, 839. The examiner diagnosed the veteran with (1) left shoulder tendonitis; (2) right shoulder tendonitis; and (3) right ulnar neuropathy, treated with nerve transposition. R. at 843.

The examiner then reached two conclusions about the veteran's right shoulder and right elbow. First, the examiner concluded that the veteran's right shoulder condition was not due to or the result of his left shoulder and left collar bone condition. Id. The examiner opined that

[t]here were no notes regarding the right shoulder in any of the records seen. It is possible that repetitive movements [and] active work involved in his job and/or activities outside of his job contributed to current right shoulder symptoms. There were no records that linked the right [shoulder] to left shoulder/clavicle .... There is no evidence in the literature or his records that the right shoulder condition would be caused by the left shoulder/left clavicle condition. Based on lack of evidence in service records or since that time, presence of possible non-military occupational factors contributing to the problem, physical exam, and medical knowledge, the current right shoulder condition is not related to [the] left shoulder/clavicle condition.

Id. Second, the examiner concluded that the veteran's right elbow condition was not proximately due to or the result of his left shoulder and left collar bone condition. Id. The...