Robinson v. Peake, 012908 USCAVC, 04-1690

Docket Nº04-1690
Opinion JudgeHAGEL, Judge
Party NameMarvin Robinson, Appellant, v. James B. Peake, M.D., Secretary of Veterans Affairs, Appellee.
AttorneyRobert V. Chisholm, of Providence, Rhode Island, argued for the appellant. James F. Cameron, of Montgomery, Alabama, was on the brief for the appellant. Leslie C. Rogall, with whom Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; and Joan E. Moriarty, Deputy Assist...
Judge PanelBefore HAGEL, LANCE, and SCHOELEN, Judges. SCHOELEN: Judge, dissenting
Case DateJanuary 29, 2008
CourtCourt of Appeals for Veteran Claims

Marvin Robinson, Appellant,

v.

James B. Peake, M.D., Secretary of Veterans Affairs, Appellee.

No. 04-1690

United States Court of Appeals for Veterans Claims

January 29, 2008

Argued May 23, 2007.

On Appeal from the Board of Veterans' Appeals.

Robert V. Chisholm, of Providence, Rhode Island, argued for the appellant. James F. Cameron, of Montgomery, Alabama, was on the brief for the appellant.

Leslie C. Rogall, with whom Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; and Joan E. Moriarty, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.

William S. Mailander and Michael P. Horan, both of Washington D.C., were on the brief of Paralyzed Veterans of America, as amicus curiae; Barbara J. Cook, of Cincinnati, Ohio, was on the brief for the National Organization of Veterans' Advocates, Inc., as amicus curiae; Landon Overby, of Washington, D.C., was on the brief for Disabled American Veterans, as amicus curiae; and John F. Cameron, of Montgomery, Alabama, was on a supplemental brief, as amicus curiae.

Before HAGEL, LANCE, and SCHOELEN, Judges.

OPINION

HAGEL, Judge

Before the Court is Marvin Robinson's appeal of a May 17, 2004, Board of Veterans' Appeals (Board) decision in which he was denied service connection on a secondary basis for heart disease and a thyroid disability. In that decision, the Board also remanded the issue of entitlement to an increased disability rating for Mr. Robinson's service-connected peptic ulcer disease. The remanded matter is not before the Court. Because Mr. Robinson has failed to demonstrate any error in the Board decision or any reason his new theory of entitlement should enjoy the benefit of a discretionary remand from this Court, the Board decision will be affirmed. See Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000).

I. FACTS

Mr. Robinson served on active duty in the U.S. Navy from October 1986 to April 1988. In November 1988, he was awarded service connection for peptic ulcer disease effective from the day following the date of his discharge from service.

In December 1998, he filed a claim for VA benefits for, among other things, heart and thyroid conditions, which he asserted had their onset in February 1996. In September 1999, a VA regional office denied him service connection for heart disease and a hyperthyroid condition secondary to his service-connected peptic ulcer disease. Mr. Robinson filed a Notice of Disagreement in November 1999 asserting that he disagreed with the regional office's denial of "service connection for heart disease and hyperthyroid condition as secondary to [his] service[-]connected peptic ulcer disease." Record (R.) at 139 (emphasis added). That Notice of Disagreement was submitted along with a letter from attorney John F. Cameron, informing VA that attorney Cameron was being designated as Mr. Robinson's attorney. R. at 141-42. Attorney Cameron asked that multiple documents, including Mr. Robinson's Notice of Disagreement, be associated with Mr. Robinson's claims file.

In October 2001, the Board remanded Mr. Robinson's claims to the regional office for additional development. Specifically, the Board ordered the regional office, among other things, to (1) "arrange for a VA examination by an appropriate specialist in order to determine the nature, severity, and etiology of the thyroid disorder" and (2) "arrange for a VA examination by a cardiovascular specialist in order to determine the nature, severity, and etiology of any cardiovascular disorder." R. at 189-90. The examiner was specifically directed to opine as to whether those conditions were related to or aggravated by Mr. Robinson's service-connected peptic ulcer disease.

The report from a November 2002 VA thyroid and parathyroid diseases examination reflects the examiner's opinion that Mr. Robinson's "chest pain . . . claimed as heart problems . . . was secondary to his [h]yperthyroidism" and that "[t]here is no heart problem that is attributable to his service[-]connected peptic ulcer disease[;] and his thyroid condition . . . is not related to his service- connected peptic ulcer disease." R. at 697. There is of record a document that purports to be the report from a November 2002 VA heart examination. See R. at 698. Under the heading "[e]xamination results, " that document states only the following: "Please see the Thyroid/Parathyroid compensation and pensions examination." Id.

The Board, in the May 2004 decision now on appeal, denied service connection on a secondary basis for heart disease and a thyroid disability. In so doing, the Board relied on the November 2002 VA examination report, which "found no relationship between the service-connected peptic ulcer disease and the two later arising diseases." R. at 9.

In his brief, Mr. Robinson raises three arguments. First, he contends that the Board violated Stegall v. West, 11 Vet.App. 268, 271 (1998), by failing to ensure compliance with the October 2001 Board remand order. In that regard, he argues that the examiner failed to discuss the etiology of the thyroid and cardiovascular conditions, as ordered by the Board. Appellant's Brief (Br.) at 8. His second argument is related to his first–that the Secretary violated the duty to assist by relying on inadequate medical examination reports. See id. at 9-10. His third and final argument is that the Board violated Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000), by failing to adjudicate whether he is entitled to service connection on a direct basis for heart disease and a thyroid disability.

In response, the Secretary contends that Mr. Robinson is challenging the propriety of the November 2002 VA examination for the first time on appeal and that the "Court should refrain from considering such arguments raised for the first time on appeal." Secretary's Br. at 9. He further contends that, should the Court consider the argument concerning the propriety of the November 2002 VA examination, that examination did comply with the Board's prior remand instructions. The Secretary asserts that Mr. Robinson was represented before the Board by the same attorney representing him before the Court and that, as a consequence, the issue should be deemed to have been waived. Id. at 13-14. Responding to Mr. Robinson's final argument, the Secretary asserts that Mr. Robinson "has consistently maintained to the [A]gency since the initial filing of his claim in 1998 that he believed his disabilities were caused on a secondary basis by his service-connected disability" and, thus, the Board did not err in failing to adjudicate entitlement to service connection for heart disease and a thyroid disability on a direct basis. Id. at 17.

On February 8, 2007, the Court issued an order notifying the parties that it was interested in resolving, among other things, the following two questions raised in this appeal: First, whether or not representation by counsel before the Agency is a factor to be considered in determining whether the Court should apply the exhaustion doctrine to affirm a Board decision rather than adjudicate or remand a new theory of entitlement first raised on appeal. And, second, whether representation by counsel before the Agency has any effect on the Court's analysis of whether VA fulfilled its obligation to consider and decide all issues reasonably raised by the claim. The Court then allowed the parties to file supplemental pleadings addressing these issues. In addition, the Court allowed for the filing of amicus briefs.

In response to that order, the Court received supplemental pleadings from the parties and multiple amicus briefs. The gist of Mr. Robinson's supplemental pleading and the amicus filings is that the Court cannot impose an exhaustion requirement because to do so would violate the principles established in the U.S. Supreme Court's decision in Sims v. Apfel, 530 U.S. 103 (2000). In addition, they argue that the Court should not treat differently appellants represented by counsel and unrepresented appellants and that the U.S. Court of Appeals for the Federal Circuit's decision in Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005), should be read narrowly to apply only in the context of motions to revise based upon clear and unmistakable error.

In his supplemental pleading, the Secretary argues that the Court can apply the exhaustion doctrine because 38 U.S.C. § 7105(c)(3) provides that an appeal to the Board "should set out specific allegations of error of fact or law." 38 U.S.C. § 7105(c)(3). He further notes that VA's regulation essentially mimics the statute. See 38 C.F.R. § 20.202 (2006) ("The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed."). Citing Andrews, the Secretary goes on to assert that whether an appellant is represented by counsel is relevant in assessing the Secretary's obligation to read claims sympathetically. The Secretary asserts that, in this case, Mr. Robinson was represented by counsel for the entire six years that his appeal was pending before VA and that, at no time before VA did Mr. Robinson raise arguments regarding service connection on a direct basis. In essence, the Secretary argues that this case is more about a represented appellant's failure to raise arguments than it is about the Secretary's duty to sympathetically read a claim. The Court heard oral argument in this matter on May 23, 2007.

II. ANALYSIS

A. Is Mr. Robinson's Argument on Appeal for Service Connection on a Direct Basis for Heart Disease and a Thyroid Disability a Separate Claim for Disability Benefits for Those Conditions?

...

To continue reading

Request your trial