Pitts v. Shinseki
| Decision Date | 27 January 2012 |
| Docket Number | 2011-7109 |
| Parties | LARRY D. PITTS, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
NOTE: This disposition is nonprecedential.
Appeal from the United States Court of Appeals for Veterans Claims in case No. 09-0280, Judge Lawrence B. Hagel.
LARRY D. PITTS, of Tuscaloosa, Alabama, pro se.
NICHOLAS K. JABBOUR, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depart-ment of Justice, of Washington, DC. For respondent-appellee. With him on the brief were TONY WEST, Assis-tant Attorney General, JEANNE E. DAVIDSON, Director, and DEBORAH A. BYNUM, Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and LARA K. EILHARDT, Attorney, United States Department of Veterans Affairs, Of Wash-ington, DC.
Before NEWMAN, BRYSON and REYNA, Circuit Judges.
Mr. Larry D. Pitts ("Pitts") appeals the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") in Pitts v. Shinseki, No. 09-0280, 2010 U.S. App. Vet. Claims LEXIS 1507, *1 (Aug. 19, 2010), which held that the Board of Veterans' Appeals ("the Board") committed no clear and unmistakable error ("CUE") in denying a compensable rating for postoperative residuals of an epigastric hernia, to include a separate compensable disability evaluation for a scar. For lack of jurisdiction, we dismiss.
Pitts served in the Army beginning in 1977, including active duty for training from January to May 1984. Id. at *2. Service medical records reflect that Pitts was seen in March 1984 for swelling above the belly-button and was diagnosed as having an epigastric hernia. The epigastric hernia was subsequently repaired by surgery in April 1984.
In May 1984, a month after his successful surgery, the Department of Veterans Affairs ("VA") granted Pitts service connection and a noncompensable disability rating for postoperative residuals of an epigastric hernia under 38 C.F.R. § 4.114, Diagnostic Code ("DC") 7339 (hernia,ventral, postoperative). Pitts challenged this determination seeking entitlement to a compensable rating. That challenge remained pending until February of 1990.
In January of 1987, Pitts was hospitalized at a VA facility for various complaints, including occasional abdominal pain. Examination at that time revealed an "old scar with keloid formation over epigastric area," but there was no rigidity, tenderness, or palpable mass. Pitts, 2010 U.S. App. Vet. Claims LEXIS 1507 at *3. In June of the same year, Pitts was treated on an outpatient basis for abdominal pain. Pitts complained of sharp non-radiating pain so he was issued a Velcro abdominal support belt and prescribed muscle relaxant. Id.
In early 1988, an examination revealed no evidence of herniation at the site of the surgical scar, but there was an identifiable "hole" just above the belly-button. Id. at *4. The physician diagnosed this as an incarcerated umbilical hernia and recorded it on the medical record. The examiner found no evidence, however, of any ventral hernia at the site of the surgical scar. In March 1988, Pitt's surgical scar was reportedly "flat and well-healed." Id.
In September 1988, as part of his ongoing challenge seeking a compensable rating for postoperative residuals of his epigastric hernia, Pitts was examined by the VA. Pitts told the VA examiner about a small bulge along the surgical incision that "comes and goes." Id. He stated that he had another bulge above the umbilicus which also came and went. The VA examination revealed a well-healed surgical incision with no signs of ventral hernia. Id. at *4-5. The examiner also noted a small abdominal defect, about the size of a finger tip, situated between the incision and the umbilicus. The examiner commentedthat this defect in the abdominal wall had most likely been present since birth. Id. at *5.
On February 17, 1990, the Board denied Pitts's May 1984 request for a compensable rating for postoperative residuals of an epigastric hernia under DC 7339, finding that the surgical scar caused no disability. The Board concluded that the evidence showed that Pitts's epigastric hernia had resulted in a well-healed scar, and that "[n]o related disability had been shown for the postoperative epigastric hernia." Id. In reviewing the medical evidence, including the 1988 reports, the Board also found that the small abdominal defect was "anatomically and diagnostically distinct from the service-connected epigastric hernia." Id. Accordingly, the requirements under DC 7339 for a compensable rating were deemed unmet. Id. at *6.
In 2007, seventeen years after the denial of a compensable rating, Pitts filed a motion challenging the Board's February 1990 decision on the basis of CUE. Id. at *7. Pitts asserted that the Board erred in failing to assign a separate compensable rating for his abdominal hernia under 38 C.F.R. § 4.118 (), despite evidence that his scars were tender and painful. In December 2008, the Board found that no CUE had been committed in Board's decision of February 1990 and rejected Pitt's assertion that he was entitled to a separate disability rating under DC 7804. The Board specifically found that the while Pitts had complained of abdominal tenderness around the surgical incision area in 1987, see Pitts, 2010 U.S. App. Vet. Claims LEXIS 1507 at *3, the scar itself was not shown to be painful, eliminating the possibility of a rating under DC 7804. On the contrary, the Board noted that upon examination in January of 1987, the scar had no rigidity, tenderness, or palpable mass. The Board stated that "[i]tis within the Board's purview to review the evidence and determine the most appropriate evaluation of a specific disability, to include the [diagnostic code] under which that disability is evaluated." Id. at *8. The Board concluded that, in 1990, "the overall evidence before it showed that [Pitts's] epigastric hernia was principally manifested by a well-healed abdominal scar." Id. The Board held that Pitts did not show CUE, but merely disagreed with the Board's weighing of the evidence. Id.
Pitts appealed to the Veterans Court. Pitts again asserted that the February 1990 decision of the Board failed to consider evidence showing that his postoperative epigastric scar was tender and should have been rated under DC 7804. Pitts also argued before the Veterans Court that the 1990 decision of the Board contained CUE because it found that his small abdominal defect (the diagnosed umbilical hernia) was distinct from his service-connected epigastric hernia. Lastly, Pitts argued that the Velcro abdominal support belt prescribed for his use was a basis for finding CUE because the Board had failed to consider it in its 1990 decision.
The Veterans Court affirmed the Board's December 2008 determination that there was no CUE in the February 1990 decision. The Veterans Court found that the Board's 2008 opinion was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Id. at *1. It likewise found the 1990 Board decision supported by an adequate statement of "reasons or bases." Id. at *12.
Regarding Pitts's argument that the Board failed to consider evidence of scar tenderness under DC 7804, the Veterans Court held that the Board properly considered the totality of the evidence in making its determination.Id. at *15. The Veterans Court concluded that, "Mr. Pitts is simply objecting to the way the Board in 1990 weighed the evidence before it, which cannot constitute clear and unmistakable error." Id.
Addressing Pitts's claim that it was CUE to find his small abdominal defect separate and distinct from the service-connected epigastric hernia, the Veterans Court held that the Board had properly reviewed the totality of the evidence, including the 1988 VA examination report opining that the umbilical hernia was most likely present since birth. Id. at *16. Given this evidence, the Veterans Court again concluded that Pitts was merely disagreeing with the way the Board weighed the facts in 1990. Id.
Lastly, concerning Pitts's argument that the Velcro abdominal belt was a basis for finding CUE, the Veterans Court found that this theory was not previously raised before the Board. The Veterans Court rearticulated: "'When an appellant raises a new theory of [CUE] for the first time before the Court, the Court must dismiss for lack of jurisdiction.'" Id. at *17 (quoting Acciola v. Peake, 22 Vet. App. 320, 325 (2008)). Because it had not been argued to the Board, the Veterans Court held that it lacked jurisdiction to adjudicate this new theory. Id. at *18. The Veterans Court noted, however, that Pitts was free to pursue his novel CUE allegation before the Board in the first instance. The Veterans Court, therefore, affirmed the Board in finding no CUE among the claims properly presented. Id. Pitts timely appealed to this court.
Our jurisdiction to review the decisions of the Veterans Court is narrowly circumscribed by statute. Yates v.West, 213 F.3d 1372, 1373-74 (Fed. Cir. 2000). We may review the decisions of the Veterans Court "on a rule of law or of any statute or regulation," or "any interpretation thereof" relied upon by the Veterans Court in rendering its decision. 38 U.S.C. § 7292(a). We can set aside a regulation or an interpretation of a regulation relied upon by the Veterans Court when we find it to be arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or without observance of procedure required by law. See id. at § 7292(d)(1). However, except for an appeal that "presents a constitutional issue," this court "may not review (A) a challenge to a factual...
To continue reading
Request your trial