Reeves v. Shinseki

• Decision Date: 14 June 2012
• Docket Number: No. 2011–7085.,2011–7085.
• Citation: 682 F.3d 988
• Parties: Mary REEVES (Substituted for Corby Reeves), Claimant–Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

682 F.3d 988

Mary REEVES (Substituted for Corby Reeves), Claimant–Appellant,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.

No. 2011–7085.

United States Court of Appeals, Federal Circuit.

June 14, 2012.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.

Elizabeth M. Hosford, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Brian M. Simkin, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Jonathan E. Taylor, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before BRYSON, MAYER, and MOORE, Circuit Judges.

Opinion for the court filed by Circuit Judge MAYER.

Dissenting opinion filed by Circuit Judge BRYSON.

MAYER, Circuit Judge.

Mary Reeves (“Mrs. Reeves”), the surviving spouse of veteran Corby Reeves (“Reeves”), appeals a judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”) that rejected Reeves' assertion of clear and unmistakable error (“CUE”) in an April 1983 decision of the Board of Veterans' Appeals (“board”). See Reeves v. Shinseki, No. 08–1951, 2010 WL 4906701, 2010 U.S.App. Vet. Claims LEXIS 2203 (Vet.App.2010) (“Veterans Court Decision ”). Because we conclude that the Veterans Court misinterpreted 38 U.S.C. § 1154(b) when it rejected Reeves' CUE claim, we reverse and remand.

Background

Reeves served in the United States Army from June 1942 until November 1945. He worked as a heavy mortar crewman during several combat offensives and was awarded three Bronze Stars. In September 1981, Reeves filed a claim seeking service-connected disability benefits for bilateral sensorineural hearing loss. Reeves stated: “During my service I experienced a hearing loss due to firing [an] 81 mm mortar and [from] treatment of malaria with quinine.... My hearing, especially the right ear, has been deteriorating ever since my active duty.” Reeves also submitted a medical opinion from his physician, R.L. Dunlap, M.D., who stated that he had diagnosed Reeves with bilateral, nerve-type hearing loss in 1962 and that he attributed this hearing impairment to “noise exposure” or to treatment with quinine for malaria.¹ In addition, Reeves submitted records of an audiogram, conducted soon after his claim was filed, which indicated that he suffered from “severe bilateral nerve-type hearing loss.”

At a hearing before a Department of Veterans Affairs (“VA”) rating board in May 1982, Reeves testified that he had first noticed his hearing loss in the summer of 1946 “when he could not hear a watch tick.” Mrs. Reeves also testified at the hearing, averring that when she married Reeves in 1948 she had noticed that he suffered from hearing loss.

In addition, Reeves submitted statements from officers with whom he had served during World War II. These officers stated that he had been exposed to noise from mortar fire and that he had been treated for malaria while in service. Major Robert P. McGraw, who served with Reeves in Company D of the 338th Infantry, stated that Reeves “had to be with his mortars” during training exercises and during several combat offensives. McGraw further asserted that “[b]eing so close to these guns during the extensive firing they received over such a long period of time, the ear could be easily damaged from the muzzle blast of the 81 mm mortar.”

In April 1983, the board denied Reeves' claim. Although it acknowledged that he was exposed to mortar fire and had been treated for malaria while in service, the board noted that “the earliest clinical recording of hearing impairment was by [Reeves'] private physician in November 1962.” The board concluded that the hearing loss that had been documented in 1962 was “too remote from [Reeves'] active service” to be caused by either his exposure to mortar fire or treatment for malaria while in service. The board's decision became final when Reeves did not file an appeal.

In 2004, the board granted Reeves' application to reopen his claim. See38 U.S.C. § 5108 (providing that a claim will be reopened “if new and material evidence is presented or secured”). The board cited to new evidence from a physician who stated that he had treated Reeves from 1946 to 1954 and that Reeves had experienced “hearing difficulties” during this time period. The physician further asserted that Reeves' hearing problems “could have resulted from his [military] service, i.e. the firing of the 81 mm mortar and the treatment of malaria with quinine.” The board also cited to a July 2001 statement from another physician, as well as a May 2004 statement from a VA medical examiner, both of which indicated that Reeves' hearing loss was likely due to noise exposure while in the military. Accordingly, the board determined that the record contained sufficient evidence to establish that Reeves' hearing impairment was incurred during his military service. It therefore awarded him service-connected disability benefits, with an effective date of June 13, 2002, the date he filed his application to reopen his claim.

In December 2006, Reeves filed a motion for revision of the 1983 board decision, arguing that he was entitled to an earlier effective date for the award of disability benefits. He asserted that the 1983 decision contained CUE because the board had failed to apply the combat presumption contained in section 1154(b). The board rejected this argument, however, stating that the application of the combat presumption was unnecessary because the 1983 decision accepted the fact that Reeves had suffered acoustic trauma in service. The board explained that “[s]ince actual evidence of noise exposure in service was available, the Board had no need to apply the combat presumption.”

The board acknowledged that the 1983 decision was “not a model of legal and factual exposition, at least by current standards.” It noted that in evaluating whether there was a nexus between Reeves' in-service injury and his subsequent hearing disability, the board reached a conclusion on nexus which might have been “based on the expertise of one of the three signatory Board members, who was a Medical Doctor.” While relying upon the medical expertise of a board member would be “highly improper” under current law, the board determined that “current standards [were] not applicable” in the context of a claim alleging CUE in an earlier board decision.

On appeal, the Veterans Court affirmed. It rejected Reeves' assertion that the evidence of record in 1983 was such that the board had no choice but to resolve in his favor any doubt on the question of whether his hearing disability was incurred in service. Veterans Court Decision, 2010 WL 4906701, at *1–2, 2010 U.S.App. Vet. Claims LEXIS 2203, at *3. The court also determined that “under the law extant in 1983, the Board was not precluded from relying upon its own medical judgment” in concluding that Reeves' hearing loss had not been incurred in service. Id. at *2, 2010 U.S.App. Vet. Claims LEXIS 2203 at *4. The court stated, moreover, that “a mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE claim.” Id. at *2, 2010 U.S.App. Vet. Claims LEXIS 2203 at *3–4.

On February 15, 2011, Reeves filed a notice of appeal with this court. He died three days later. On April 14, 2011, Mrs. Reeves filed a motion to be substituted for her husband on appeal. This motion, which included a copy of Reeves' certified death certificate, stated that Mrs. Reeves was entitled to receive any benefits that were due and payable to her husband as of the date of his death. On June 1, 2011, this court granted Mrs. Reeves' motion to substitute for her husband on appeal, without prejudice to the government's ability to make arguments in its appeal brief on the question of whether substitution was appropriate.

Discussion

This court's authority to review decisions of the Veterans Court is circumscribed by statute. See38 U.S.C. § 7292. Although we have no authority to review challenges to factual determinations or the application of a statute or regulation to the facts of a particular case, “[w]e have recognized ... that where adoption of a particular legal standard dictates the outcome of a case based on undisputed facts, we may address that issue as a question of law.” Halpern v. Principi, 384 F.3d 1297, 1306 (Fed.Cir.2004).

The government makes two principal arguments. First, it contends that Mrs. Reeves has no standing to be substituted for her husband on appeal because she has not filed a claim for accrued benefits with the VA. Second, it argues that there is no CUE in the 1983 board decision because the failure to apply the combat presumption contained in section 1154(b)² was harmless error. We find neither of these arguments persuasive.

I. Substitution

Pursuant to Rule 43 of the Federal Rules of Appellate Procedure, if a party dies while his appeal is pending before an appellate court, his personal representative may be substituted for him: “If a party dies after a notice of appeal has been filed or while a proceeding is pending in the court of appeals, the decedent's personal representative may be substituted as a party on motion filed with the circuit clerk by the representative or by any party.” Fed. R.App. P. 43(a)(1). There is no dispute that Reeves died after he had filed his notice of appeal with this court. There is likewise no dispute that Mrs. Reeves is her husband's personal representative as his surviving spouse, and that she filed a timely motion to be substituted for him on appeal. Mrs. Reeves, therefore, meets the prerequisites for substitution under Rule 43(a)(1).

As the government correctly notes, however, “[t]he question of substitution is separate from that of...