**United States Court of Appeals for the Federal Circuit**

04-7001

JERRY R. SHEDDEN,

> Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Respondent-Appellee.

[Kenneth M. Carpenter]{.underline}, Carpenter, Chartered, of Topeka,
Kansas, argued for claimant-appellant.

[Martin F. Hockey, Jr.]{.underline}, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Department of Justice,
of Washington, DC, argued for respondent-appellee. With him on the brief
were [Peter D. Keisler]{.underline}, Assistant Attorney General; and
[David M. Cohen]{.underline}, Director. Of counsel were [Michael J.
Timinski]{.underline}, Deputy Assistant General Counsel, and [Y. Ken
Lee]{.underline}, Staff Attorney, United States Department of Veterans
Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge Kenneth B. Kramer

**United States Court of Appeals for the Federal Circuit**

04-7001

# JERRY R. SHEDDEN, 

Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Respondent-Appellee.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: August 20, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before NEWMAN, DYK and PROST, [Circuit Judges]{.underline}.

Opinion for the court filed by DYK, [Circuit Judge]{.underline}. Opinion
concurring-in-part and dissenting-in-part filed by NEWMAN, [Circuit
Judge]{.underline}.

DYK, [Circuit Judge]{.underline}.

Appellant Jerry R. Shedden ("Mr. Shedden") appeals from the decision of
the Court of Appeals for Veterans Claims affirming the Board of
Veterans' Appeals' ("BVA") denial of his claim for clear and
unmistakable error ("CUE") in a 1994 BVA decision that denied service
connection for a psychiatric disorder. [Shedden v.
Principi]{.underline}, No. 01-1534 (Vet. App. Aug. 22, 2003). While the
Court of Appeals for Veterans Claims erroneously stated that 38 U.S.C. §
105(a) does not create a presumption of service connection, we conclude
that this error was harmless, and we affirm.

BACKGROUND

Mr. Shedden served on active duty in the United States Marine Corps from
January 1968 to January 1972. After leaving service, Mr. Shedden made a
claim for service connection for a psychiatric disorder that the
Department of Veterans Affairs ("VA") Regional Office ("RO") denied in a
February 1980 rating decision. In a 1982 rating decision the RO denied
Mr. Shedden's claim for service connection for posttraumatic stress
disorder ("PTSD"). Neither of these decisions was appealed, and they
became final.

Subsequently, Mr. Shedden requested that his claim of entitlement for
service connection for a psychiatric disorder, including PTSD, be
reopened because of new and material evidence. The RO denied this
request in July 1988. That decision was appealed, and the BVA remanded
to the RO for additional development. After a series of decisions by the
RO continuing to deny Mr. Shedden's claim for service connection, the
appellant again appealed to the BVA.

In a June 1994 decision the BVA determined that new and material
evidence had been submitted and reopened Mr. Shedden's claim, but it
denied it on the merits. Reviewing Mr. Shedden's claim [de]{.underline}
[novo]{.underline}, the BVA found that during the period he was on
active duty, "\[t\]he veteran's service medical records \[we\]re silent
as to any complaints, treatment or diagnosis of a psychiatric disorder."
[In re Shedden]{.underline}, No. 89-25 959, slip op. at 6 (Bd. Vet. App.
June 2, 1994) (the "1994 decision"). The BVA further held that
"\[t\]here is also no showing of what could be an acquired psychiatric
disorder either prior to or during service, or at a point sufficiently
proximate to service as could be reasonably related thereto."
[Id.]{.underline} at 10. Moreover, the BVA found that the veteran had
failed to show that he was then suffering from PTSD. [Id.]{.underline}
at 4.

In December 2000 Mr. Shedden filed a claim alleging that there was CUE
in the BVA's 1994 decision. Among other things,[^1] Mr. Shedden
contended that there was evidence in the record that he had suffered
from a psychiatric condition during service and that this triggered a
presumption of service connection under 38 U.S.C. § 105(a). In a 2001
decision the BVA rejected Mr. Shedden's CUE claim holding that in the
1994 decision it correctly "found that a psychiatric disorder had not
been incurred in or aggravated by active service" and that "\[t\]he
Board was not required to consider the provisions of 38 U.S.C.\[\] §
105(a)." [In re Shedden]{.underline}, No. 01-02 277, slip op. at 31 (Bd.
Vet. App. July 23, 2001). The BVA further held that, even if section
105(a) were applicable, the veteran's

> assertions that the statute creates a presumption of service
> connection is \[sic\] without merit. As the language of the statute
> indicates, an injury or disease that is incurred during active service
> is deemed to have been incurred in the line of duty and not the result
> of the veteran's own misconduct. Service connection can be granted
> only for diseases or injuries that are incurred in the line of duty,
> and the statute creates a presumption that an injury incurred during
> active service was incurred in the line of duty. The statute does not
> pertain to whether the injury or disease was, in fact, incurred in
> active service.

[Id.]{.underline} (citations omitted).

On appeal, the Court of Appeals for Veterans Claims agreed with the BVA
that section 105(a) provides a presumption that an injury was incurred
in the "line of duty," but "does not grant presumptive service
connection for an injury . . . incurred in active duty." [Shedden v.
Principi]{.underline}, slip op. at 3. The court further held that the
veteran's section 105(a) argument "d\[id\] not constitute a sufficient
basis for establishing CUE . . . because he ha\[d\] not demonstrated how
any of the asserted errors . . . would have been outcome determinative
of the June 1994 BVA decision . . . ." [Id.]{.underline} Mr. Shedden
timely appealed to this court. We have jurisdiction pursuant to 38
U.S.C. § 7292.

DISCUSSION

"We review a claim for legal error in the decision of the Court of
Appeals for Veterans Claims without deference." [Moody v.
Principi]{.underline}, 360 F.3d 1306, 1310 (Fed. Cir. 2004).

I

Sections 1110 and 1131 of Title 38 of the United States Code provide
compensation to veterans for personal injury or disease and for
aggravation of a preexisting injury or disease, if they are incurred "in
line of duty" and are service-connected. [See]{.underline} 38 U.S.C. §§
1110, 1131 (2000).[^2] We have recently had occasion to review the
application of those provisions in the context of the presumption of
soundness in [Wagner]{.underline}. This case requires us to consider
their application in the context of 38 U.S.C. § 105(a). Section 105(a)
provides that:

> \[a\]n injury or disease incurred during active military, naval, or
> air service will be deemed to have been [incurred in line of
> duty]{.underline} and not the result of the veteran's own misconduct
> when the person on whose account benefits are claimed was, at the time
> the injury was suffered or disease contracted, in active military,
> naval, or air service, whether on active duty or on authorized leave,
> unless such injury or disease was a result of the person's own willful
> misconduct or abuse of alcohol or drugs.

38 U.S.C. § 105(a) (emphasis added).[^3] Here, we must consider whether
the statutory language "incurred in line of duty" and
"service-connected" mean the same thing. We conclude that they do.

The statute itself makes clear that "service-connected" means the same
thing as "incurred in the line of duty." 38 U.S.C. § 101(16) states
that: "The term 'service-connected' means, with respect to disability or
death, that such disability was incurred or aggravated, or that the
death resulted from a disability incurred or aggravated, in line of duty
in the active military, naval, or air service." 38 U.S.C. § 101(16). We
have also assumed that this is the correct interpretation.
[See]{.underline} [Forshey v. Principi]{.underline}, 284 F.3d 1335, 1352
(Fed. Cir.) ([en]{.underline} [banc]{.underline}) (referring to "the
presumption of service connection set forth in 38 U.S.C. § 105(a)"),
[cert. denied]{.underline}, 537 U.S. 823 (2002). Thus we conclude that
section 105(a) creates a presumption of service connection, that is,
that a disability first manifested or aggravated during active duty is
deemed to be service connected, "unless such injury or disease was a
result of the person's own willful misconduct or abuse of alcohol or
drugs." 38 U.S.C. § 105(a).

However, the mere fact that a serviceman has suffered a
service-connected disease or injury does not automatically lead to
compensation for future disabilities. The Court of Appeals for Veterans
Claims has correctly noted that in order to establish service connection
or service-connected aggravation for a present disability the veteran
must show: (1) the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a causal
relationship between the present disability and the disease or injury
incurred or aggravated during service. [Hansen v. Principi]{.underline},
16 Vet. App. 110, 111 (2002) (citing [Caluza v. Brown]{.underline}, 7
Vet. App. 498, 505 (1995), [aff'd]{.underline}, 78 F.3d 604 (Fed. Cir.
1996) (table)). Thus, while section 105(a) establishes a presumption
that the disease or injury incurred during active duty is
service-connected, the veteran seeking compensation must still show the
existence of a present disability and that there is a causal
relationship between the present disability and the injury, disease, or
aggravation of a preexisting injury or disease incurred during active
duty.[^4] [See also]{.underline} [Dambach v. Gober]{.underline}, 223
F.3d 1376, 1380 (Fed. Cir. 2000) (explaining that under 38 U.S.C. §
1154(b) a veteran may "proffer 'satisfactory lay or other evidence of
service incurrence or aggravation of such injury or disease'" to
establish the causal relationship and other requirements for service
connection (quoting [Collette v. Brown]{.underline}, 82 F.3d 389, 393
(Fed. Cir. 1996))). However, there is not, as the government contended
at oral argument, any requirement to show a causal relationship between
the present disability and the particular event or circumstance that
gave rise to the in-service injury or aggravation.

II

The appellant's complaint in this case, as best we can determine from
the somewhat confusing briefs and oral argument, is that the Court of
Appeals for Veterans Claims incorrectly stated that section 105(a) did
not create a presumption of service connection for a disease or injury
that was incurred during active service. In this respect the appellant
is correct. The Court of Appeals for Veterans Claims held that section
105(a) "provid\[es\] a presumption in favor of finding 'line of duty,'"
but "does not grant presumptive service connection for an injury . . .
incurred in active duty." [Shedden]{.underline}, slip op. at 3. As
explained above the statute makes no distinction between the terms
"incurred in line of duty" and "service-connected." Contrary to the
Court of Appeals for Veterans Claims' opinion, section 105(a) creates a
presumption of service connection when "\[a\]n injury or disease \[was\]
incurred during active military, naval, or air service . . . unless such
injury or disease was a result of the person's own willful misconduct or
abuse of alcohol or drugs." 35 U.S.C. § 105(a).

III

However, the Court of Appeals for Veterans Claims' error in this case
was harmless. The Court of Appeals for Veterans Claims held
alternatively that there was no CUE because Mr. Shedden had failed to
show that section 105(a) "would have been outcome determinative of the
June 1994 BVA decision." [Id.]{.underline} We interpret this to mean
that the court agreed with the BVA on its other ground for rejecting Mr.
Shedden's section 105(a) argument, namely that there was no showing of a
psychiatric condition incurred in active service that could give rise to
the section 105(a) presumption. This alternate ground for affirming the
judgment of no CUE has not been challenged on appeal.

This court reviews the judgments entered in appeals from the Court of
Appeals for Veterans Claims, not the opinions issued by that court.
[Szemraj v. Principi]{.underline}, 357 F.3d 1370, 1375 (Fed. Cir. 2004).
In this case, the judgment denying the appellant's CUE claim was
unaffected by the Court of Appeals for Veterans Claim's interpretative
error because that judgment rested on an alternate ground that was
unaffected by the error. There is therefore no basis to reverse that
judgment, and the decision of the Court of Appeals for Veterans Claims
is

[AFFIRMED]{.underline}.

COSTS

No costs.

# **United States Court of Appeals for the Federal Circuit**

04-7001

JERRY R. SHEDDEN,

Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI,

Secretary of Veterans Affairs,

Respondent-Appellee.

NEWMAN, [Circuit Judge]{.underline}, concurring in part, dissenting in
part.

The panel majority correctly concludes that the Court of Appeals for
Veterans Claims (CAVC) misconstrued 38 U.S.C. §105, and that the statute
creates a presumption that a disability first manifested or aggravated
during active duty is deemed service connected. However, I do not agree
that the CAVC error in statutory interpretation and application was in
this case \"harmless,\" for the record is not sufficiently developed nor
the opinion below sufficiently detailed to know whether a different
result might ensue on the correct statutory meaning and application.

The statutory construction that this court now adopts is neither the one
advanced by the government nor the one proposed by Mr. Shedden. Thus
neither side has identified evidence in the record supporting its
position under our statutory construction. Since there appears to be
evidence in the record relevant to the origin of Mr. Shedden\'s
psychiatric disorder, I would remand so that the evidence can be
considered by the appropriate tribunal under the correct law.

The panel majority agrees with the CAVC\'s conclusion that Mr. Shedden
did not show that the correct interpretation of §105 \"would have been
outcome determinative of the June 1994 BVA decision.\" Maj. op. at 7
(quoting [Shedden v. Principi]{.underline}, No 01-1534, slip op. at 3
(Vet. App. Aug. 22, 2003)). The CAVC did not explain its reasoning, and
may be factually incorrect. The statement is so conclusory that my
colleagues in the majority have to speculate about what the CAVC had in
mind.

To establish a service-connected disability, the veteran must show a
present disability, the in-service incurrence or aggravation of a
disease or injury, and a causal relationship between them. The panel
majority holds, and I agree, that any injury or illness incurred or
aggravated while the veteran is serving on active duty is deemed to be
service connected. Presumably, the CAVC ruled that an essential element
of Mr. Shedden\'s claim was missing; however, the CAVC would have had to
find that Mr. Shedden does not now suffer from post-traumatic stress
disorder, or that he was not injured or incurred illness while on active
duty, or that the events in service and later are not causally related.
The panel majority is not sure, stating, \"We interpret \[the court\'s
statement\] to mean that the court agreed with the BVA on the other
ground for rejecting Mr. Shedden\'s section 105(a) argument, namely that
there was no showing of a psychiatric condition incurred in active
service that could give rise to the section 105(a) presumption.\" The
CAVC, however, did not make a finding concerning service events that
could give rise to post-traumatic stress disorder, but apparently
required that the disorder itself was manifested during the period of
active service.

Mr. Shedden points out, and it is well-known, that post-traumatic stress
disorder is not always manifested immediately upon the occurrence of the
causal event. The panel majority\'s requirement that there be \"a
psychiatric condition incurred in active service\" does not also require
that the manifestation thereof appeared immediately. The antecedent
basis for post-traumatic stress disorder is an in-service trauma, nor an
earlier psychiatric disorder. Delayed onset has been recognized by the
courts. [See]{.underline}, [e.g.]{.underline}, [Moe v. United
States]{.underline}, 326 F.3d 1065, 1069 (9th Cir. 2003) (post-traumatic
stress disorder linked to shooting at workplace); [Likes v.
Callahan]{.underline}, 112 F.3d 189, 191 (5th Cir. 1997) (\"\'PTSD is an
unstable condition that may not manifest itself until well after the
stressful event which caused it, and may wax and wane after
manifestation.\'\") (quoting [Jones v. Chater]{.underline}, 65 F.3d 102,
103 (8th Cir. 1995)).

Mr. Shedden points to medical evidence in the record linking his current
psychiatric difficulties with events from his military service,
particularly with the gunshot wound he incurred in the line of duty. On
the correct statutory construction, he must be permitted to establish
this link. The panel majority\'s holding that he must show not only a
traumatic event but its psychiatric consequences manifested during
service appears to be medically incorrect. This court should not
establish a scientific/medical error as a matter of law.

The case should be remanded, for redetermination under the correct
interpretation of the statute.

[^1]: The other grounds for CUE pressed by Mr. Shedden before the Court
    of Appeals for Veterans Claims have been abandoned on appeal.

[^2]: While sections 1110 and 1131 do not directly impose a requirement
    of service connection, they provide for "compensation," 38 U.S.C. §§
    1110, 1131, which is defined to mean a payment made "because of
    service-connected disability" or death, 38 U.S.C. § 101(13).
    [See]{.underline} [Wagner v. Principi]{.underline}, 370 F.3d 1089,
    1093 (Fed. Cir. 2004).

[^3]: The current version of section 105(a) is identical to the one in
    effect at the time of the 1994 decision.

[^4]: Of course, the presumption under section 105(a) will not apply if
    the disease or injury incurred during active service "was a result
    of the person's own willful misconduct or abuse of alcohol or
    drugs." 38 U.S.C. § 105(a). Such misconduct is not at issue in this
    case.