Roberson v. Shinseki

• Decision Date: 07 June 2010
• Docket Number: No. 2009-7093.,2009-7093.
• Citation: 607 F.3d 809
• Parties: Catherine ROBERSON, Claimant-Appellant,v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

607 F.3d 809

Catherine ROBERSON, Claimant-Appellant,v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2009-7093.

United States Court of Appeals, Federal Circuit.

June 7, 2010.

Sandra E. Booth, Sandra E. Booth Attorney at Law, of Columbus, OH, argued for claimant-appellant.

Allison Kidd-Miller, Trial Attorney, 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 Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Before BRYSON and MOORE, Circuit Judges, and FOLSOM, Chief District Judge.¹

FOLSOM, Chief District Judge.

Appellant Catherine Roberson appeals the decision of the Court of Appeals for Veterans Claims (Veterans Court) affirming the Board of Veterans' Appeals (Board) decision denying Mrs. Roberson's claim for death and indemnity compensation (DIC) pursuant to former 38 U.S.C. § 1151 for her husband's death from non-service-connected cancer. Because the Veterans Court properly interpreted former 38 U.S.C. § 1151, we affirm.

Background

Mrs. Roberson's late husband, Isaac Roberson, served in the United States Army from 1956 until he was granted an honorable discharge in 1959. His medical history includes a heart attack in 1974 and a nondisabling cerebrovascular accident (CVA) or stroke in 1974 with a second CVA in 1990, which left the veteran with some paralysis on his left side. There is no claim that the heart attack or CVAs are service-connected.

Mr. Roberson regularly received treatment at VA medical facilities, including the Columbus, Ohio VA Outpatient Center and VA hospitals in Chillicothe and Cincinnati, Ohio. He also occasionally was treated by emergency room personnel at Riverside Methodist Hospital (Riverside), a private facility in Columbus, Ohio. Beginning in March 1993, Mr. Roberson was treated exclusively by VA providers over the next two years. In January 1995, he visited the Columbus, Ohio VA Outpatient Center for modification of an orthotic and for stroke follow-ups. His last VA hospital admission prior to his death was in March 1995, when he was seen for a period of respite care. At that time, Mr. Roberson had no specific complaints other than a “head cold,” and he was treated for mild pharyngitis. In May 1995, Mr. Roberson was seen by a VA physician who noted his increasing symptoms (greater use of assistive devices, cane, grab bars, lift chair), but attributed those symptoms to his history of strokes.

In June 1995 Mrs. Roberson took her husband to Riverside after he began experiencing slurred speech and intermittent vision impairment. The computed tomography (CT) scan performed at Riverside yielded negative results. Later that month, Mr. Roberson visited Riverside for a follow-up examination at which time the treatment provider found him to be agitated, anxious, and frustrated because he was unable to do things or make himself understood. The treatment provider diagnosed Mr. Roberson with “adjustment disorder.”

Mr. Roberson was again admitted to Riverside through its emergency room in August 1995. During this visit, however, a CT scan showed a significant obstructed hydrocephalus-a condition characterized by abnormal accumulation of fluid in the cranial vault-with a mass in the right cerebellum. The subsequent magnetic resonance imaging (MRI) showed a five centimeter mass and metastasis in the right cerebellum. Mr. Roberson also had extensive involvement in the liver and subcutaneous masses with possible metastasis to bone. The physician's clinical impression was to “rule out prostatic carcinoma with cerebral metastasis.” A consultation report prepared at the time by Riverside physician Dr. James D. Pritchard indicated that the origin of Mr. Roberson's cancer was “most likely” in the lung although other sources could not be ruled out. Mr. Roberson died two months later in October 1995 from cardiac arrhythmia caused by pneumonia brought on by the metastatic cancer.

At the time of his death, Mr. Roberson had an appeal pending for compensable ratings for arthritis of his left foot and right great toe. In February 1996, appellant Mrs. Roberson filed a claim for accrued benefits based on her husband's increased ratings that were pending. Three months later, she filed a claim for DIC benefits based on the contention that her husband's death resulted from his treatment at the VA medical facility. Specifically, Mrs. Roberson claimed that the VA physicians failed to diagnose her late husband's cancer and that this failure hastened his death. In June 1996, the VA Regional Office denied Mrs. Roberson's DIC claim because the evidence failed to show that the cause of Mr. Roberson's death was related to his military service or to a service-connected condition. Mrs. Roberson persisted, but in September 1996 the Regional Office denied her claim based on former 38 U.S.C. § 1151.

In November 1998, the Board similarly denied DIC benefits based on a lack of service connection for the cause of Mr. Roberson's death and under former § 1151. The Board, however, granted entitlement to accrued benefits and assigned 10% disability ratings for Mr. Roberson's left foot and right toe disabilities. The Veterans Court nevertheless vacated the Board's November 1998 decision and remanded the matter for further development, including compliance with the Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, 114 Stat. 2096. See Roberson v. Principi, No. 99-352, 2001 WL 290189, at *3 (Vet.App. Mar.22, 2001).

Upon the Board's request for additional development, two VA physicians from the Bronx, New York VA medical center provided an opinion in July 2003 regarding Mr. Roberson's cancer and death. In that opinion, the physicians stated that although the primary site of the cancer was undetermined, the “possible primary sites for this cancer include head and neck tumors, prostate, and bowel.” Onset of the cancer occurred four to six months before the August 1995 diagnosis, concluded the VA physicians. The VA physicians also noted that “neither of the brain metastases was detectable on [a] CT scan of the head in June, 1995” and that “the second of the two brain metastases was undetectable on CT scan of the head on 8/14/95, two days before it was discovered on 8/16/95.” According to the VA physicians, “the multiple scans and x-rays that were performed in 1995 prove that the disorder was first manifested in August, 1995” and “was not present on testing prior to July, 1995.”

The Board also asked the VA physicians to answer specific questions, including:

Did VA fail, during a period of VA treatment, to diagnose the disorder which caused the veteran's death, when a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment?

The VA physicians were additionally asked to determine whether the veteran suffered any additional disability or death as a result of the VA's failure to diagnose the veteran's cancer. In response, the VA physicians stated:

There are no symptoms recorded during the episodes of VA treatment suggestive of a medical condition that warranted further investigation. In the absence of a history to suggest a disorder other than the multiple strokes, and in the absence of a change in physical findings to suggest a new or worsening process, further investigative studies were not clinically indicated.

The VA physicians added:

It is impossible to say if [the veteran] could have been cured if the disease had been detected earlier. Death from extensive small cell carcinoma with brain involvement usually, but not always, results in death within 10 months. Any individual patient, however, may not follow this statistic. Small cell carcinomas have a median survival with treatment of 10 months.

The Board on remand also considered a January 1998 letter Dr. Pritchard wrote on behalf of Mrs. Roberson in which he opined that as of August 1995, Mr. Roberson “already had brain involvement from his tumor, and in addition, the C [ ]T scan showed extensive involvement in the liver, lymph nodes, and lung. Therefore his disease was advanced at the time of diagnosis.” Dr. Pritchard's letter also stated that the small cell carcinoma had “advanced very quickly and had not been present for a long period of time” with an estimated “onset of perhaps four to eight months prior to the diagnosis.”

After reviewing the opinions of the VA physicians, Dr. Pritchard's letter, Mrs. Roberson's lay opinions, and the rest of the evidentiary record, the Board found “no evidence of record suggesting that VA treatment, specifically the lack of a diagnosis of [Mr. Roberson's] small cell carcinoma, had the effect of hastening [Mr. Roberson's] death.” See Bd. Vet.App. 0525865, 2005 WL 3916807 (2005).

Mrs. Roberson appealed the Board's decision to the Veterans Court asserting that VA treatment, that is, the failure to diagnose her husband's cancer, had the effect of hastening his death. The Veterans Court affirmed and held that the Board's decision that Mrs. Roberson had not proven her claim to entitlement to DIC benefits under former 38 U.S.C. § 1151 by a preponderance of the evidence was not clearly erroneous. Roberson v. Shinseki, 22 Vet.App. 358, 366 (2009). In so finding the Veterans Court concluded that Mrs. Roberson “has not shown that VA should have diagnosed the veteran's cancer prior to his actual diagnosis.” Id.

Discussion

This Court has jurisdiction pursuant to 38 U.S.C. § 7292(c). We review statutory interpretation by the Veterans Court de novo. Glover v. West, 185 F.3d 1328, 1331 (Fed.Cir.1999). Absent a constitutional issue, we...