Wood v. Peake

• Decision Date: 28 March 2008
• Docket Number: No. 2007-7174.,2007-7174.
• Citation: 520 F.3d 1345
• Parties: Deloris G. WOOD, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

520 F.3d 1345

Deloris G. WOOD, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.

No. 2007-7174.

United States Court of Appeals, Federal Circuit.

March 28, 2008.

Zachary M. Stolz, Chisholm Chisholm & Kilpatrick LLP of Washington, DC, argued for claimant-appellant. On the brief was Richard Paul Cohen, Cohen, Abate & Cohen, L.C., of Morgantown, WVA. Of counsel was Ronald L. Smith, Disabled American Veterans, of Washington, DC.

Brian T. Edmunds, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director, and Claudia Burke, Attorney. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Tracey P. Warrein, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before MICHEL, Chief Judge, DYK, Circuit Judge, and KENNELLY, District Judge.^*

Opinion for the court filed by Chief Judge MICHEL. Circuit Judge DYK dissents.

MICHEL, Chief Judge.

Deloris G. Wood appeals from the final decision of the Court of Appeals for Veterans Claims ("Veterans Court") sustaining the Department of Veterans Affairs ("VA") denial of her claim for dependency and indemnity compensation ("DIC"). See Wood v. Nicholson, No. 05-2164, 21 Vet. App. 418, 2006 WL 3007770 (Vet.App. Oct. 4, 2006) ("Wood II"). Because the Veterans Court committed legal error by failing to apply 38 U.S.C. § 5103A(a) in reviewing the VA's denial of her request for assistance, and we cannot decide whether the error was harmless without exceeding our jurisdiction, we vacate and remand.

I. BACKGROUND

Mrs. Wood's husband, Thomas W. Wood, served in the U.S. Army during World War II, leaving the service in March 1946. Shortly before his discharge, Mr. Wood slipped in the shower and incurred a severe head injury on December 11, 1945. He was treated at a base hospital, which kept him on bed rest before returning him to duty. Private and VA medical records, Mrs. Wood's testimony, their son's testimony, and his own personal documents indicate that Mr. Wood suffered from chronic severe headaches from shortly after his in-service head injury throughout his life. As a result, Mr. Wood took large quantities of numerous medications to deal with the headaches. The medical records provide evidence that doctors, including a VA physician, believed his headaches were the result of his original in-service head injury.

Mr. Wood also suffered from numerous other health problems, some related to his headaches and some unrelated. His headache medications, for example, caused gastrointestinal bleeding from ulcers on multiple occasions. In 1985, Mr. Wood developed hydrocephalus (water on the brain), which required the insertion of a ventriculo-peritoneal shunt to relieve pressure on his brain. This shunt had to be replaced multiple times due to infection and other reasons, and it remained in place for the rest of his life. He also developed hypertension. In June 1991, Mr. Wood sustained a second head injury, again falling in the shower; the injury caused a grand mal seizure, and he also experienced a serious brain hemorrhage (a subdural hematoma). He fell again in 1992, again suffering a serious brain hemorrhage (a basal brain bleed). Mr. Wood was also diagnosed with lung cancer in 1980 and had surgery as a result. The cancer resurfaced in 1997 and was treated with radiation therapy.

Mr. Wood died on November 2, 1998. The primary cause of death according to the autopsy report was heart disease (myocardial ischemia). The detailed autopsy report of the examining physician, Dr. James W. Spindler, M.D., also listed eighteen "contributing factors," including "history of a remote history of fall with subsequent severe headaches, 1946." Appellant's App'x at 1235-36. The death certificate by the coroner,¹ however, only listed his cancer, feeding tube, and ventriculo-peritoneal shunt as "[o]ther significant conditions contributing to death but not resulting in [the primary cause of death]" in the limited space provided on the one-page form. Id. at 1233.

Mrs. Wood filed for DIC benefits in February 1999. Her claim was ultimately denied by the VA regional office ("RO") in February 2005. She appealed to the Board and requested that the VA assist her by obtaining a medical opinion to assess whether her husband's headaches and related conditions were material contributory causes of his death. The Board denied her request for assistance and held that the RO correctly determined that Mr. Wood's headaches were not a contributory cause of death within the meaning of 38 C.F.R. § 3.312(a), thus sustaining the RO's denial of benefits. In large part, the Board's decision was based on the fact that although the autopsy report listed Mr. Wood's history of headaches as a contributing factor of his death, the death certificate omitted that factor from its listing of just three contributory factors.

Mrs. Wood next appealed to the Veterans Court, which affirmed the Board's decision in a brief one-judge non-precedential opinion. The Veterans Court held that the Board had not erred by denying Mrs. Wood's request for assistance because she had not met all of the prerequisites under 38 U.S.C. § 5103A(d)(2) to require the VA to obtain a medical opinion. Additionally, the Veterans Court held that the Board was not clearly erroneous in finding that Mr. Wood's head conditions did not contribute "substantially and materially to his death" as required by 38 C.F.R. § 3.312(a). Wood II, at *2. Specifically, the Veterans Court held that, despite the autopsy report's listing of Mr. Wood's head injury and subsequent headaches as a contributing factor of his death, the Board correctly relied instead on the death certificate that omitted it. Id.

II. DISCUSSION

A.

The key threshold issue in this case is whether Mrs. Wood was entitled to assistance from the VA in obtaining a medical opinion to review and reconcile conflicting medical evidence in the record under the Veterans Claims Assistance Act ("VCAA"). The Veterans Court held that she was not so entitled because she did not meet all of the required elements of 38 U.S.C. § 5103A(d)(2), which sets forth conditions on the VA's duty to obtain medical opinions under § 5103A(d)(l). The government concedes, however, that § 5103A(d)(l) does not apply to DIC claims and that the Veterans Court thus erred as a matter of law by reviewing the Board's denial of her request for assistance solely under that provision of the VCAA. Rather, the Veterans Court should have applied the general duty to assist provision of 38 U.S.C. § 5103A(a), which provides in relevant part:

(a) Duty To Assist.

(1) The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary.

(2) The Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.

Since DIC benefits are a "benefit under a law administered by the Secretary," this provision clearly applies to Mrs. Wood's request for assistance here.

We have recently held that § 5103A(a) "does not always require the Secretary to assist the claimant in obtaining a medical opinion or examination." DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed.Cir.2008). But § 5103A(a) does require the VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is "necessary to substantiate the claimant's claim." 38 U.S.C. § 5103A(a)(l); DeLaRosa, 515 F.3d at 1322. In fact, the statute only excuses the VA from making reasonable efforts to provide such assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2). Thus, the Veterans Court erred by not assessing whether the free medical opinion requested by Mrs. Wood was "necessary to substantiate [her] claim," or whether "no reasonable possibility exists" that the medical opinion requested by Mrs. Wood "would aid in substantiating [her] claim," under § 5103A(a).

B.

Though under DeLaRosa, and as is conceded, the Veterans Court committed legal error, it is still necessary to examine whether its decision can be affirmed nonetheless on the ground that the error was harmless. As we noted in Szemraj v. Principi however, the limited scope of our review of Veterans Court decisions also limits our application of the harmless error principle. 357 F.3d 1370, 1374 (Fed.Cir. 2004). Generally, under 28 U.S.C. § 2111, we must disregard "errors or defects which do not affect the substantial rights of the parties." However, under 38 U.S.C. § 7292(a), we may only review "the validity of a decision of the [Veterans Court] on a rule of law or of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans Court] in making the decision." Congress then went even further, providing that, absent a constitutional question, this court may not review "(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." 38 U.S.C. § 7292(d)(2); see also Maggitt v. West, 202 F.3d 1370, 1374 (Fed.Cir.2000).

In D'Amico v. West, we held that the Veterans Court had erred by failing to apply a statute, 38 U.S.C. § 5108, in its review of a Board decision. 209 F.3d 1322, 1327 (Fed.Cir.2000). The government argued in that case that the Veterans Court decision should nonetheless be affirmed because the Board, unlike the Veterans Court, had applied the statute in its decision and concluded that the claimant had not met its requirements. Id. We declined to affirm on the basis of harmless...