Schroeder v. West Jr.

• Decision Date: 18 May 2000
• Citation: 212 F.3d 1265
• Parties: (Fed. Cir. 2000) EDWARD W. SCHROEDER, Claimant-Appellant, v. TOGO D. WEST, JR., Secretary of Veterans Affairs, Respondent-Appellee. 99-7103 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1265

212 F.3d 1265 (Fed. Cir. 2000)

EDWARD W. SCHROEDER, Claimant-Appellant, v. TOGO D. WEST, JR., Secretary of Veterans Affairs, Respondent-Appellee.

99-7103

United States Court of Appeals for the Federal Circuit

DECIDED: May 18, 2000

Appealed from: United States Court of Appeals for Veterans Claims Judge Jonathan R. Steinberg

Michael P. Horan, Paralyzed Veterans of America, of Washington, DC, argued for claimant-appellant.

Marian Sullivan, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director; and James M. Kinsella, Assistant Director. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel; and Martie S. Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

Before MAYER, Chief Judge, BRYSON, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

DECISION

Edward W. Schroeder appeals the February 8 and February 11, 1999 decisions of the United States Court of Appeals for Veterans Claims (the CAVC),¹ No. 97-0131, denying his request for en banc review of his claim for direct service connection for bilateral eye disorder and affirming the Board of Veterans' Appeals' (the Board's) determination that that claim was not well grounded. As part of his appeal to the CAVC, Schroeder successfully argued that his claim for service connection for bilateral eye disorder due to Agent Orange exposure was well grounded, and that claim was remanded to the Department of Veterans Affairs (the agency) for assistance in developing that claim. However, once a veteran has properly made out a well-grounded claim for a current disability as a result of a specific in-service disease or injury and the agency's duty to assist pursuant to 38 U.S.C. § 5107(a) (1994)² attaches, the agency is required to investigate all possible in-service causes of that current disability, including those unknown to the veteran. Thus, we reverse the CAVC's affirmance of the Board's determination that Schroeder's direct service connection claim for bilateral eye disorder was not well grounded and remand that claim to the agency and order the agency to assist the veteran in developing that claim, in conjunction with his well-grounded claim based on Agent Orange exposure.

BACKGROUND

Schroeder was engaged in active military service from October 1948 to October 1949 and from January 1951 to March 1970. In 1987, Schroeder filed a claim for service connection for a cataract with blindness of the right eye resulting from in-service Agent Orange exposure. The Board of Veterans' Appeals denied the claim, and Schroeder did not appeal.

In July 1989, Schroeder filed an informal claim with the Board for service connection for "an eye condition" based on a new diagnosis of diffuse choroiditis, including a reference to Agent Orange.³ The agency treated Schroeder's submission as two new claims, one for direct service connection of a bilateral eye disorder, currently diagnosed as diffuse choroiditis (direct service connection claim), and a second for service connection for a bilateral eye disorder, currently diagnosed as diffuse choroiditis, associated with Agent Orange exposure (Agent Orange claim). In a September 30, 1996 decision, the Board determined that both the direct service connection claim and the Agent Orange claim were not well grounded within the meaning of 38 U.S.C. § 5107(a). In particular, the Board determined that Schroeder's direct service connection claim failed not only because he had failed to provide competent medical evidence that he had incurred or aggravated the eye disorder in service, but also because of a lack of evidence of a nexus between his present eye disorder and any incident in service. Regarding his Agent Orange claim, the Board determined that although Schroeder had testified that he believed that he had been exposed to Agent Orange during his tour in Vietnam, he had provided only speculative medical evidence that his exposure to "something" during his overseas duty had caused his present eye disorder. Because Schroeder failed to carry his burden of providing sufficient evidence to establish his claims as well grounded, thereby failing to invoke the agency's duty to assist the veteran in developing his claims, the Board denied his claims for service connection for a bilateral eye disorder, diagnosed as diffuse choroiditis.

Schroeder appealed to the CAVC. In a December 31, 1998 order, the CAVC severed the direct service connection claim from the Agent Orange claim, in response to a motion filed by Schroeder for en banc review of the direct service connection claim. Regarding the Agent Orange claim, the CAVC held that the Board had erred in finding that claim not well grounded as "[t]he veteran has submitted evidence of a current disability of diffuse choroiditis and a medical opinion that it is a 'considerable possibility' that the etiology of the veteran's condition is due [to] his having been 'exposed' during his duty in Vietnam." The CAVC vacated the Board's determination that the Agent Orange claim was not well grounded and remanded that claim for "expeditious further development" and readjudication.

In a February 8, 1999 order, the CAVC (en banc) denied Schroeder's request for en banc review of his direct service connection claim, and noted that Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), controlled the case, was binding on the CAVC, and expressly rejected Schroeder's contention that the agency's duty to assist attached prior to the submission of a well-grounded claim pursuant to 38 U.S.C. § 5107(a). In a February 11, 1999 order, the CAVC (single judge opinion) affirmed the Board's determination that the veteran's direct service connection claim was not well grounded, citing the Federal Circuit's decision in Epps as binding precedent on the CAVC. Schroeder now appeals the CAVC's February 8 and February 11, 1999 orders.

DISCUSSION

A.

We have limited jurisdiction in reviewing decisions of the CAVC. We may only review the validity or interpretation of any statute or regulation relied on by the CAVC in making its decision. See 38 U.S.C. § 7292(a). In reviewing CAVC determinations, we decide "all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1). We will set aside a regulation or interpretation of a regulation relied upon by the CAVC that we find to be "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitation, or in violation of a statutory right; or (D) without observance of procedure required by law." Id. We review the CAVC's legal determinations de novo. See Dittrich v. West, 163 F.3d 1349, 1351 (Fed. Cir. 1998) (citing Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991)). We may not review factual determinations or the application of law to facts. See 38 U.S.C. § 7292(d)(2); Anglin v. West, 202 F.3d 1343, 1345 (Fed. Cir. 2000).

B.

Section 5107(a) provides in relevant part:

(a) [A] person who submits a claim for benefit under a law administered by the Secretary [of Veteran Affairs] shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim.

38 U.S.C. § 5107(a) (emphasis added). In Epps v. Gober, this court interpreted section 5107(a) to require the veteran to submit a well-grounded claim before the agency's duty to assist attached. See 126 F.3d at 1467. That conclusion was based exclusively on the statutory language, i.e., that the phrase "such a claimant" in the second sentence of section 5107(a) had its antecedent basis in the first sentence of section 5107(a). See id. at 1468. The court determined that "such a claimant" referred to "the claimant who has first met its burden of submitting a 'well grounded' claim. Thus, under § 5107(a), the [agency] has a duty to assist only those claimants who have established 'well grounded' (i.e., plausible) claims." Id. at 1468-69. The court found the cited legislative history unclear. See id. at 1469.

For a claim to be well grounded, there must be "(1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability." Id. at 1468. Relying on Epps, the CAVC affirmed the Board's determination that Schroeder's direct service connection claim for bilateral eye disorder lacked medical evidence of in-service occurrence or aggravation of an eye disorder (second prong) as well as evidence of nexus (third prong), and thus Schroeder's claim was not well grounded.

Schroeder asserts that the CAVC erred in requiring him to identify multiple legal theories upon which he relied to support his claim for benefits. He argues that he filed one claim for service connection for bilateral eye disorder, and proposed two theories, Agent Orange exposure or some other unnamed toxic substance. He notes that he can only establish service connection for bilateral eye disorder once, and that the agency will only make one award for service connection for bilateral eye disorder. Thus, he should not be required to make each individual theory of his "claim" well grounded before the agency's duty to assist attaches.

In response, the Secretary relies on the "text and structure" of section 5107(a) and reiterates the Epps court's analysis of when the agency's duty to assist attaches once a well-grounded claim is presented. Insisting that evidence of an in-service disease or injury and...