Simmons v. Wilkie
| Decision Date | 20 September 2018 |
| Docket Number | 16-3039 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | Richard D. Simmons, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
Argued April 25, 2018
On Appeal from the Board of Veterans' Appeals
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Mark D. Gore, with whom Meghan Flanz, Interim General Counsel Mary Ann Flynn, Chief Counsel; and Kenneth A. Walsh, Deputy Chief Counsel; and Joshua L. Wolinsky, Appellate Attorney all of Washington, D.C., were on the brief for the appellee.
Before DAVIS, Chief Judge, and BARTLEY and ALLEN, Judges.
Veteran Richard D. Simmons appeals through counsel a May 13, 2016 Board of Veterans' Appeals (Board) decision that found that a September 1974 regional office (RO) rating decision denying service connection for an acquired psychiatric disorder did not contain clear and unmistakable error (CUE). Record (R.) at 2-19. This matter was referred to a panel of the Court principally to address the Court's harmless error analysis framework post-Sanders, particularly in the context of reviewing Board decisions on CUE motions. Shinseki v. Sanders, 556 U.S. 396 (2010). We hold that, although the Board erred in analyzing two statutory presumptions when it found no CUE in the 1974 decision, that error is harmless because it did not affect the essential fairness of the adjudication or the Board's ultimate determination that the 1974 RO decision did not contain CUE; therefore, the Court will affirm the May 13, 2016, Board decision.
Mr. Simmons served on active duty in the U.S. Navy from November 1968 to January 1970. R. at 43. Upon entry into service, he denied "frequent trouble sleeping," "frequent or terrifying nightmares," "depression or excessive worry," and "nervous trouble of any sort." R. at 119. In a contemporaneous examination, a service physician documented a normal clinical examination with no noted psychiatric symptoms. R. at 121-22.
In April 1969, Mr. Simmons was hospitalized for two days for psychiatric observation following a suicide attempt. R. at 127-29. Upon admission, he requested medication for "nerves," and the service clinician provided diagnostic impressions of "depressive reaction" and "attempted suicide." R. at 127-28. The hospital discharge summary reflects that Mr. Simmons had "a long history of 'nerve' problems . . . [with] several episodes of 'home sickness' and depression since coming aboard [the ship] in November [1968]." R. at 129. The service clinician diagnosed "situational depression." Id. Mr. Simmons remained depressed and under observation for 48 hours until "he received a letter from home [at which point h]is spirits lifted measurably and he was discharged to duty." Id.
In December 1969, following unsuccessful attempts at obtaining a hardship discharge, Mr. Simmons was referred for neuropsychiatric evaluation due to frequent feelings of depression and "inability to adjust to Naval life." R. at 130. The service clinician documented a moderately depressed mood, appropriate affect, clear sensorium, intact memory, and logical and coherent thought processes. Id. The clinician asserted that Mr. Simmons had "no evidence of psychosis"; he diagnosed Mr. Simmons with immature personality disorder and recommended administrative discharge due to unsuitability. R. at 130-31. The January 1970 service separation examination report reflects a normal clinical examination with no noted psychiatric symptoms. R. at 106-07.
In September 1972, Mr. Simmons sought non-service-connected pension benefits. In December 1972, a VA RO granted pension benefits due to polyarthritis of multiple joints. R. at 69-70.
In June 1974, Mr. Simmons requested disability compensation for rheumatoid arthritis, stating "there is a reasonable presumption that my rheumatoid arthritis condition was manifested as a direct result of my mental depression in service and culminated in my administrative discharge." R. at 52. In an attached statement, Mr. Simmons's private hematologist opined that "it is a reasonable presumption that the illness manifested as mental depression during [service] is the same illness now manifested as arthritis involving multiple joints." R. at 49. He added that "it [is] likely that the chronic disorder [Mr. Simmons] now has was present at the time of his military service." Id.
Upon VA examination in August 1974, Mr. Simmons reported current symptoms of severe pain, weakness, weight loss, loss of appetite, nervousness, sleep disturbances, and stiffness. R. at 1453. Following medical examination, the examiner diagnosed rheumatoid arthritis. R. at 1456. Upon psychological examination, Mr. Simmons stated that while he was overseas, he felt tense, nervous, and homesick, causing him to drink excessively. R. at 1457. He denied in-service hospitalization except for acute intoxication. Id. He stated that he "got along alright after service[, ] although he felt a little nervous at times," he worked regularly for almost 2 years at a Dupont plant until he developed rheumatoid arthritis, and that rheumatoid arthritis has been progressive since then, involving more joints and constant medication. Id. He further stated that he "feels tense and nervous most of the time and this is worse when [there is] more pain in his joints" and attributed some insomnia, depressed mood, and decreased concentration to increased physical symptoms. Id. Following examination, the examiner diagnosed "anxiety reaction with depressive features, moderate only, secondary to arthritic condition." Id.
In September 1974, the RO denied service connection for rheumatoid arthritis and a nervous condition. R. at 1448-49. The RO found no evidence that Mr. Simmons experienced chronic neurosis during service and noted that he was administratively discharged due to immature personality disorder. R. at 1449. Likewise, the RO found no evidence that Mr. Simmons experienced arthritis during service or within one year following service. Id. The RO concluded that neither the arthritic condition nor the anxiety reaction was incurred during service, and that the currently diagnosed anxiety reaction was not related to the immature personality disorder that resulted in his separation from service. R. at 1448. Mr. Simmons filed a Notice of Disagreement (NOD) with the September 1974 RO decision, but did not perfect an appeal to the Board following issuance of a Statement of the Case (SOC).
In 1977, Mr. Simmons successfully filed to reopen his claims for service connection, but they were again denied in an unappealed April 1977 RO decision.[1] In January 1990, Mr. Simmons again filed to reopen a claim for service connection for emotional trauma and a nervous breakdown. In an unappealed February 1991 decision, the Board reopened the claim for service connection, but denied the underlying claim.
In December 2005, Mr. Simmons, through counsel, filed a CUE motion as to the September 1974 RO decision that denied service connection for rheumatoid arthritis and a nervous condition with depressive features. R. at 326-33. In September 2009, the RO found no CUE in the September 1974 RO decision with respect to both claims. R. at 315-17. In September 2010, Mr. Simmons filed an NOD only as to the RO's finding of no CUE in the September 1974 denial of service connection for an acquired psychiatric disability. R. at 293-300. Following a March 2012 SOC, R. at 234-47, Mr. Simmons perfected an appeal to the Board in April 2012, R. at 194-202.
In March 2015, the Board found no CUE in the September 1974 RO decision that denied service connection for an anxiety disorder with depressive features. R. at 184-92. In its decision, the Board found that the September 1974 RO decision was subsumed by the February 1991 adverse Board decision and, therefore, was not subject to a CUE challenge. R. at 190. Mr. Simmons appealed that Board decision to this Court. In a January 2016 joint motion for remand, the parties agreed that readjudication was needed because the Board erred in finding that the February 1991 Board decision subsumed the September 1974 RO decision because the February 1991 Board decision did not involve a de novo review of the same issue before the RO in 1974. R. at 137-42 ().
In the May 2016 decision on appeal, the Board found no CUE in the September 1974 RO decision that denied service connection for an acquired psychiatric disorder. R. at 4-5. The Board found that Mr. Simmons failed to demonstrate that the September 1974 RO decision misapplied, or failed to apply, any applicable law or VA regulation, or that the decision otherwise contained CUE. R. at 18. In consideration of Mr. Simmons's arguments regarding statutory presumptions, the Board specifically found that neither the presumption of soundness nor the presumption of service incurrence applied. R. at 16-17. The Board further found that most of Mr. Simmons's arguments "boil down to allegations that the RO in 1974 improperly weighed the evidence of record in denying the claim; such allegations can never rise to the level of CUE." Id. The Board added that "[Mr. Simmons] has not offered an explanation as to how the outcome would be manifestly different but for the errors claimed." Id. This appeal followed.
When a prior final RO or Board decision contains CUE, that decision may be reversed or...
To continue reading
Request your trial