Sprinkle v. Shinseki

• Decision Date: 24 October 2013
• Docket Number: No. 2012–7156.,2012–7156.
• Parties: Jimmy R. SPRINKLE, Claimant–Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

733 F.3d 1180

Jimmy R. SPRINKLE, Claimant–Appellant,

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

No. 2012–7156.

United States Court of Appeals,Federal Circuit.

Oct. 24, 2013.

John F. Cameron, of Montgomery, AL, arguing for claimant-appellant.

Vincent D. Paul Phillips, Jr., Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, arguing for respondent—appellee. With him on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director, and Carrie A. Dunsmore, Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Tracey Parker Warren, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before RADER, Chief Judge, REYNA, and TARANTO, Circuit Judges.

Opinion for the court filed by Circuit Judge REYNA.

Dissenting opinion filed by Circuit Judge TARANTO.

REYNA, Circuit Judge.

Jimmy Sprinkle appeals a decision of the Court of Appeals for Veterans Claims, which denied his claims for entitlement to service connection for mitral valve prolapse and benign familial myoclonus. See Sprinkle v. Shinseki, No. 10–3231, 2012 WL 573644, 2012 U.S.App. Vet. Claims LEXIS 284 (Vet.App. Feb. 23, 2012). We agree that Mr. Sprinkle was not denied fair process as it related to responding to a medical exam ordered by the Board of Veterans' Appeals (“Board”). Accordingly, we affirm.

I. Background

Mr. Sprinkle served in the U.S. Army from May 13, 1973 until February 19, 1974. While in the service, Mr. Sprinkle was diagnosed with schizophrenia and prescribed a high dose of Thorazine®. In August 1990, almost seventeen years after separating from the military, Mr. Sprinkle was diagnosed with mitral valve prolapse and chorea, a movement disorder similar to benign familial myoclonus. After Mr. Sprinkle succeeded in establishing entitlement to disability compensation before the Social Security Administration, the Veteran's Affairs (VA) Regional Office awarded Mr. Sprinkle a nonservice-connected pension on April 14, 1993 effective August 1990. On October 26, 2001, Mr. Sprinkle filed an application with the VA for entitlement to a service connection for mitral valve prolapse and myoclonus. Mr. Sprinkle maintained that he was incorrectly diagnosed with schizophrenia while in the service and that the high doses of Thorazine® he received worsened his mitral valve prolapse and caused his myoclonus.

Following an initial medical exam, the Regional Office concluded that Mr. Sprinkle's conditions were not service-connected due to the seventeen-year gap between service and the onset of his mitral valve prolapse and myoclonus. In a July 27, 2009 decision, the Board remanded to the Regional Office for another medical examination to address a letter from Mr. Sprinkle's private physician that indicated that his conditions were worsened by his inservice ingestion of Thorazine®. Mr. Sprinkle received a second VA examination on October 7, 2009, but the Regional Office continued to deny his entitlement to service connection in a October 21, 2009 Supplemental Statement of the Case. The Supplemental Statement of the Case summarized and relied on the medical opinions derived from the October 7th examination: neither Mr. Sprinkle's mitral valve prolapse nor his familial myoclonus was “caused by or a result of the administration of thorazine while he was on active duty military service.” Joint App'x 90. Furthermore, Mr. Sprinkle was notified that he had a period of time (30 days) to respond with additional comments or evidence before his appeal would be returned to the Board; alternatively, Mr. Sprinkle could request that the Regional Office return his appeal to the Board prior to the expiration of the 30–day period. On November4, 2009, Mr. Sprinkle pursued the latter course by indicating that he had no other information or evidence to submit and requesting that his case be returned to the Board as soon as possible.

On November 13, 2009, the Regional Office sent Mr. Sprinkle a letter, notifying him that his appeal had been certified to the Board and that the Regional Office was transferring all his records to the Board. The letter also indicated that Mr. Sprinkle had 90 days, or until the Board issued a decision in his case, to send the Board additional evidence concerning his appeal. On November 20, 2009, Mr. Sprinkle, now through counsel, responded to the Regional Office, disagreeing with the conclusions of its Supplemental Statement of the Case and expressing a desire to have his appeal returned to the Board. In doing so, Mr. Sprinkle also requested that “all ... evidence ... obtained by the VA after December 1, 2004,” be sent to him. Joint App'x 92. This request was broad enough to include the medical examiner's October 7, 2009 opinion. Mr. Sprinkle reiterated his request to the Regional Office in February and March, 2010. Because the record had already been sent to the Board, however, each request for evidence was forwarded by the Regional Office to the Board. Sprinkle, 2012 WL 573644, at *1–2, 2012 U.S.App. Vet. Claims LEXIS 284, at *3–4.

On May 6, 2010, Mr. Sprinkle's counsel received 525 pages of documents including the medical examiner's October 7, 2009 opinion.¹ Less than thirty days later, on June 3, 2010, the Board issued its decision denying Mr. Sprinkle's entitlement to service connection for his mitral valve prolapse and benign familial myoclonus. Mr. Sprinkle appealed to the Court of Appeals for Veterans Claims arguing, inter alia, that the Board failed to afford him fair process in the adjudication of his claims by not providing him with a copy of the October 7, 2009 medical examiner's opinion until fewer than 30 days before the Board's decision. The appeals court rejected Mr. Sprinkle's fair process arguments and affirmed the Board's decision denying entitlement to service connection. Mr. Sprinkle timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292(a), (c).

II. Standard of Review

According to 38 U.S.C. § 7292(a), this court reviews decisions of the Court of Appeals for Veterans Claims with respect to the validity of a decision on a rule of law or of any statute or regulation or any interpretation thereof that was relied on in making the decision. § 7292(a). Except to the extent an appeal presents a constitutional issue, this court may not review a challenge to a factual determination or a challenge to a law or regulation as applied to the facts of a particular case. § 7292(d)(2). Accordingly, we review questions of statutory and regulatory interpretation de novo. Moody v. Principi, 360 F.3d 1306, 1310 (Fed.Cir.2004).

III. Discussion

A. The Regulations

Claims for veterans' benefits are initially developed and adjudicated by a VA RegionalOffice. See38 U.S.C. § 7105(b)(1), (d)(1). Decisions of the Regional Office are then reviewed on appeal by the Board. See38 U.S.C. § 7104(a). To ensure that claimants receive the benefit of this two-tiered review within the agency, all evidence relevant to a claim generally must be considered by the Regional Office in the first instance. Id. Accordingly, the Regional Office conducts all necessary evidentiary development, including obtaining medical examinations and opinions. 38 U.S.C. § 5103A(d). If the Regional Office denies a benefit sought, it must provide the claimant notice of the decision and include “a summary of the evidence considered by the Secretary.” 38 U.S.C. § 5104(b). And if the claimant disagrees with that denial, the Regional Office must then prepare a Statement of the Case that includes “[a] summary of the evidence in the case pertinent to the issue or issues with which disagreement has been expressed.” 38 U.S.C. § 7105(d)(1); see also38 C.F.R. § 19.29 (requiring that the Statement of the Case “be complete enough to allow the appellant to present written and/or oral arguments before the Board”). Any additional evidence that the claimant presents there-after must be addressed by the Regional Office in a Supplemental Statement of the Case. 38 C.F.R. §§ 19.31(b), 19.37(a).

Congress created a narrow exception to this first-instance consideration of evidence by the Regional Office, providing that “when, in the judgment of the Board, expert medical opinion ... is warranted by the medical complexity or controversy involved in an appeal case, the Board may secure an advisory medical opinion from one or more independent medical experts who are not employees of the [VA].” 38 U.S.C. § 7109(a); see also38 C.F.R. § 20.901(a). Additionally, Congress, and the VA through the passage of enabling regulations, created a procedural safeguard to this first-instance evidence gathering by the Board. Specifically, the Board is required to notify the claimant that it is requesting an advisory medical opinion; provide the claimant with a copy of the opinion; and allow the claimant 60 days to respond to the opinion with evidence or argument. § 7109(c); 38 C.F.R. § 20.903(a). This case, however, does not implicate this exception. The Board did not obtain an advisory opinion pursuant to § 20.901. Cf. Gambill v. Shinseki, 576 F.3d 1307, 1309 (Fed.Cir.2009). Instead, it remanded the case for a medical examination administered by the Regional Office. In re Sprinkle, No. 05–06 785A, slip op. at 2–3 (B.V.A. Jul. 27, 2009).

Under 38 C.F.R. § 19.9, the Board is required to remand a case to the Regional Office specifying the action to be taken “[i]f further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision.” § 19.9. Following any additional development of the evidence, the Regional Office decides whether the record as a whole supports allowance of the benefits sought. 38 C.F.R. § 19.38. If any benefit sought remains denied, the Regional Office must issue a...