## United States Court of Appeals for the Federal Circuit

2008-7051

GREGORY J. EMENAKER, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee.

J. Michael Jakes , Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of Washington, DC, argued for claimant-appe llant. With him on the brief was Ronald L. Smith . Of counsel was Harold M. Shaw , King & Spalding LLP , of Washington, DC. Elizabeth A. Holt , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondentappellee. With her on the brief were Gregory G. Katsas , Assistant Attorney General, Jeanne E. Davidson , Director, and Martin F. Hockey, Jr. , Assistant Director. Of counsel was Brian T. Edmunds , Trial Attorney. Of counsel on the brief were Ethan Kalett , Supervisory Attorney, and Michael G. Daugherty , Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims Judge William A. Moorman

## United States Court of Appeals for the Federal Circuit

2008-7051 GREGORY J. EMENAKER, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secretar y of Veterans Affairs, Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in 05-3169, Judge William A. Moorman.

___________________________ DECIDED: December 31, 2008

___________________________ Before SCHALL, FRIEDMAN, and BRYSON, Circuit Judges

. BRYSON, Circuit Judge

. Gregory J. Emenaker, a veter an, appeals from a decision of the United States Court of Appeals for Veterans Claims (“the Ve terans Court”), which denied his request for benefits attributable to a service connect ed disability stemming from a neurological disorder. Mr. Emenaker argues that the Veterans Court misinterpreted the statutory presumption of sound condition accorded to veterans, 38 U.S.C. § 1111, and the regulation that implem ents that presumption, 38 C.F.R. § 3.304(b). Because we hold that the argument Mr. Emenaker presents to us has not been properly preserved for appeal, we affirm.2008-7051 2 I Mr. Emenaker served on active duty in the United States Navy from October 1974 to October 1994. In-service medical reco rds reflected that he suffered from slight weakness on the left side of his body. CT imaging conducted during his service revealed subtle changes in the right hemispher e of his brain, which led the examining physician to conclude that Mr. Emenaker suffered from br ain atrophy and weakness of the left upper and lower extremities secondary to a traumatic brain injury that he experienced as a child. In December 1994, after hi s retirement, Mr. Emenaker filed a claim for service connection for several conditions, including at rophy of the right cerebral hemisphere and a resulting weakness on the left side of his body. A regional office of the Department of Veterans Affairs (“DVA”) granted Mr. Emenaker’s claim of service connection for an in-service fracture of hi s left shoulder, but denied service connection for his brain injury and left side weakness on the ground that the condition originated prior to service and had not been aggravated during service. On appeal, the Board of Veterans’ Appeals determined that the regional office had improperly relied on its own assessment of the medical evidence and that there had been “no professional medical opinion regarding whether the ve teran’s disorder was aggravated by service.” The Board remanded the case to t he regional office in April 1999 to determine, among other things, “whether there is evidence of aggr avation in service beyond natural progress pursuant to 38 C.F.R. §§ 3. 304(b), 3.306.” The regional office arranged for an independent medical examination of Mr. Emenak er, which was conducted by Dr. Patrick Kilhenny in July 2000.2008-7051 3 Following that examination, Dr. Kilhenny prepared a report in which he noted that Mr. Emenaker’s left-side weakness had prev iously been traced to a motor vehicle accident that occurred when Mr. Emenaker was five years old. Mr. Emenaker reported that the accident left him in a coma fo r some time and required speech therapy thereafter. Dr. Kilhenny concluded that Mr. Emenaker “has had a gradual increasing weakness on the left side of his body for approximately ten years time,” and that although he “does not have a primary motor neuron disease,” he had “an old encephalomalacia [softening of the brain tissue] seen on his MRI with resultant left hemiparesis [weakening of the left side of t he body] which I would describe as mild.” Dr. Kilhenny further concluded that Mr. Em enaker’s symptoms “are secondary to his childhood accident and do not repr esent evidence of a new neurologic entity.” He added that “[o]ccasionally, head in jured patients can have a slight worsening of their symptoms with age and this is due to t he normal dying off phenomenon of neurons which can bring out a weakness later in life. ” Based on that report, the regional office issued a Supplemental Statement of t he Case, again denying Mr. Emenaker’s application for benefits. Subsequently, and at the request of the regional office, Dr. Kilhenny provided an addendum to his report, in which he stated: It is my professional opinion, that it is at least as likely as not, a) that this veteran’s disorder pr e-existed entrance into the military service. b) the veteran underwent a normal progression, during service; age related changes. c) The increase was normal, age re lated loss; not job related. The regional office then prepared another Supplemental Statement of the Case, again denying Mr. Emenaker’s claim. The B oard of Veterans’ Appeals affirmed that decision in January 2002. The Board found that “while the evidence does establish that2008-7051 4 there was a permanent increase in severity of the veteran’s preexisting disability during service, the evidence also cl early and unmistakably establis hes that this increase was due to the natural progress of t hat disability.” Accordingly, the Board concluded that Mr. Emenaker’s preexisting disability was not aggravat ed as a result of his military service. The Veterans Court vacated that decisi on in April 2005. The court focused on the “at least as likely as not” language in Dr. Kilhenny’s supplem ental statement and ruled that the Board had failed to explain adequately how that statement could satisfy the requirement of clear and unmistakable evidence needed to rebut the presumption of aggravation under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304. T he court stated that the Board “must fully and adequately explain whether the opinion rises to the level of clearand-unmistakable evidence despite the use of the seemingly equivocal phrase ‘at least as likely as not.’” On remand, the Board in a 2005 opinion ex plained that Dr. Kilhenny’s statement was responding to questions set forth in t he Board’s 1999 opinion, in which the Board had specifically directed him “to provide an opinion as to whether it is at least as likely as not that: a) the disorder pre-existed entrance into militar y service; b) if so, did it undergo an increase in severity during service; c) if so, was any such increase beyond the natural progress of the disease.” T he Board in its 2005 opinion then added: We recognize that the rubric “at leas t as likely as not” is not, taken alone, strictly equivalent to “clear and unm istakable evidence.” However, the neurological examiner’s addendum followed up on his detailed and comprehensive examination report, wh ich described the veteran’s preservice and in-service history, and his present condition. Based upon a careful reading of the examiner’s initial report and subsequent addendum, the Board believes the opinion is unequi vocal in concluding that the increase in the veteran’s symptomat ology in service represented an expected and normal progression due to the aging process.2008-7051 5 Based on that assessment, t he Board concluded that the record contained clear and unmistakable evidence that the increase in severity of Mr. Emenaker’s symptoms was due to the natural progression of a preservice condition. A ccordingly, the Board denied his claim. Mr. Emenaker appealed that decision to the Veterans Court. After assessing the Board’s explanation of Dr . Kilhenny’s statement, the court concluded that the language he used “is not fatal to his opinion.” The court then affirmed the Board’s decision denying service connection for Mr. Emenaker’s condition, and Mr. Emenaker appealed to this court. II Mr. Emenaker’s legal argum ent on appeal relates to t he statutory presumption that a veteran was in sound condition when enr olled for service, which can be overcome only by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by se rvice. 38 U.S.C. § 1111; see Wagner v. Principi , 370 F.3d 1089, 1096 (Fed. Cir. 2004). Mr. Emenaker concedes that his condition originated prior to his entry into militar y service. As a result, his challenge focuses on whether his condition was aggravated by service. As to that issue, he contends that the statutory presumption of aggravation, which applies whenever a pre-service disability increases in severity during service, cannot be rebutted by medical judgment alone, and that the presumption should not have been held to be r ebutted in his case by a single medical professional’s opinion. Mr. Emenaker relies on the st atute that sets forth t he presumption of soundness, as well as the statute’s im plementing regulation. Mr. Emenaker’s statutory argument depends on a comparison between 38 U.S.C. § 1111, which creates the soundness2008-7051 6 presumption applicable to veterans (such as Mr. Emenaker) who serv ed during wartime, and 38 U.S.C. § 1132, which creates an analogous presumption applicable to veterans of peacetime service. 1 Pointing to the difference in language between the two statutes, Mr. Emenaker argues that C ongress intentionally remov ed language stating that the soundness presumption may be rebutted by “e vidence, or medical judgment” from section 1111 while retaining that language in section 1132. The pu rpose of creating that difference between the two statutes, according to Mr. Emenaker, was to ensure that for veterans covered by section 1111, medi cal judgment alone could not serve to rebut the soundness presumption. In addition, Mr. Emenaker relies on t he regulation that implements section 1111, which states in pertinent part that determinations as to whether the presumption of soundness has been rebutted “should not be based on medical judgment alone as disti nguished from accepted medical principles . . . .” 38 C.F.R. § 3.304(b)(1). Mr. Emenaker concl udes that the government improperly made the dispositive finding in hi s case—that his brain atrophy was not aggravated by a service connection—by relying solely on Dr. Kilhenny’s medical judgment, and that doing so constituted legal error. The government agrees with Mr. Emenaker that in light of the regulation, medical judgment alone cannot overcome the presumption of soundne ss in 38 U.S.C. § 1111. However, the government contends that t he DVA may rely on “medical opinion or medical evidence,” which is not reliance on “medical judgment alone,” and that the DVA properly did so in this case.

1 Although the two statut es purport to create different rules for the two classes of veterans, the DVA’s regulations effectiv ely apply the wartime st andard to nearly all veterans, including all “peacetime” vete rans whose service postdates 1946.2008-7051 7 Section 3.304(b)(1) of the DVA regulation does not make clear exactly what is contemplated by the term “medi cal judgment.” However, section 3.304(b)(2) explains that in determining whether the section 1111 presumption has been overcome, the DVA is free to consider “[h]istory conforming to accepted medical principles,” “basic clinical data,” “accepted medical and evidentiary pr inciples,” “accepted medical evidence relating to incurrence, symptom s and course of the injury or disease,” “official and other records made prior to, during or subsequent to service,” and “all other lay and medical evidence concerning the incept ion, development and manifestat ions of the particular condition.” 38 C.F.R. § 3.304(b)(2).
In Harris v. West , 203 F.3d 1347 (Fed. Cir. 2000), we emphasized the breadth of that regulatory provisi on. The veteran in that case challenged the denial of service connection based on the legal argument that the presumption of soundness may be rebutted only by contemporaneous evidence, as opposed to a medical professional’s after-the-fact assessment. We held that there is no such requirement. To the contrary, we stated that the statute “s ays nothing about the kind of ev idence that can be used to rebut the presumption.” Id. at 1349. We added that the regulation provides that “[h]istory conforming to accepted medical pr inciples should be given due consideration, in conjunction with basic clinical data, and be accorded probative va lue consistent with accepted medical and evidentiary principles . . . .” Id. at 1350 (quoting from 38 C.F.R. § 3.304(b)(2)). We interpreted that direct ion to mean that “the finder of fact should consider all medically accepted evidence bearing on whether the service member was suffering from the disease or inju ry in question prior to induction.” Id. Although we emphasized that the regulation pr ovides broad authorization as to the kinds of evidence2008-7051 8 that the DVA may consider in determining whether the pr esumption of soundness has been overcome, we had no occasion to addr ess the meaning of the regulatory prohibition against the use of “medical judgment alone as distinguished from accepted medical principles.” 38 C.F.R. § 3.304(b)(1). That issue, which Mr. Emenaker seeks to raise here, was thus not addressed or resolved in Harris

. Mr. Emenaker argues that there is a meaningful difference between medical principles and medical judgment. He ar gues that a case “in which a physician concludes that accepted medical principles compel the conclusion that an injury or disease preexisted service is fundamentally different from one in which the physician offers only his personal opinion. The former is not, while the latter is, mere medical judgment.” Mr. Emenaker cont ends that “a private physician’s opinion is no more than medical judgment alone.” For the reasons explained below, however, we conclude that Mr. Emenaker did not raise that argument in a way that preserved the issue for review here. We therefore do not r each the merits of his claim that the DVA improperly relied on “medical judgment alone” in finding that the presumption of soundness was rebutted. III In order to present a legal issue in a veteran’s appeal, the appellant ordinarily must raise the issue proper ly before the Veterans C ourt; with limited exceptions, appellate courts do not consider issues that were not raised in the tribunal from which the appeal is taken, and we have held that those general principl es of appellate practice apply in the context of appeals from the Veterans Court. See Forshey v. Principi , 284 F.3d 1335, 1355 (Fed. Cir. 2002) ( en banc). While the requirement that an issue be preserved for appeal “does not demand the incant ation of particular wo rds, it requires2008-7051 9 that the lower court be fair ly put on notice as to the substance of the issue.” Nelson v. Adams USA, Inc

. , 529 U.S. 460, 469 (2000). As noted, Mr. Emenaker argues in this court that a physician’s opinion alone is insufficient to rebut the pr esumption of soundness in 38 U. S.C. §1111. In his brief before the Veterans Court, however, Mr. Emenaker made a different argument. He argued that Dr. Kilhenny’s opinion was insu fficient to rebut the presumption of soundness because Dr. Kilhenny expressed hi s opinion by using the expression “at least as likely as not.” Those two arguments plainly do not embody the same concept. It is not surprising that Mr. Emenaker focused on the question whether the “at least as likely as not” language in Dr. Kilhenny’s opinion could rise to the level of clear and unmistakable evidence required to rebut a presumption of aggravat ion, as that had been the issue on which the Veterans Court had previously remanded the case to the Board. When the Veterans Court first dealt with the case, that court had specifically determined that the Board “also failed to ex plain how the ‘at least as likely as not’ language in Dr. Kilhenny’s report could rise to the level of clear-and-unmistakable evidence,” and it had directed that “if the B oard again relies on Dr. K ilhenny’s opinion, it must fully and adequately explai n whether the opinion rises to the level of clear-andunmistakable evidence despite the use of t he seemingly equivocal phrase ‘at least as likely as not.’” When the Boar d reconsidered that issue, it responded to the Veterans Court’s concern that Dr. Kilhenny’s use of the “at least as likely as not” language was indicative of something less than clear and unmistakable evidence by stating, “We recognize that the rubric ‘at least as likely as not’ is not, taken alone, strictly equivalent to ‘clear and unmistakable evidence.’” It is therefore not surprising that when Mr.2008-7051 10 Emenaker chose to again appeal to the Veterans Court, he elected to focus on that very issue. Mr. Emenaker’s brief before the Veterans Court represented t hat he was raising only a single issue: “The Board’s decision fa ils to explain how Dr. Kilhenny’s opinion can be deemed undebatable in light of his use of ‘at least as likely as not.’” Mr. Emenaker then succinctly explained his positi on as follows: “The Board’s finding is founded on Dr. Kilhenny’s opinion. That opinion fails to satisfy the onerous clear and unmistakable evidence standard because it is expr essed in terms of ‘at least as likely as not.’” Mr. Emenaker now asks that we look to a single, broadly worded expression of his argument to conclude that he had in fact been challenging Dr. Kilhenny’s opinion as a “medical judgment” that was ba rred from consideration by t he Board. In his brief, Mr. Emenaker stated, “Dr. Kilhenny’s opinion is insu fficient as a matter of law to satisfy the clear and unmistakable evidenc e standard.” It is clear, however, that when he made that statement in his opening brief befor e the Veterans Court, Mr. Emenaker was attacking the sufficiency of the medical evidenc e, not because it consisted of a medical judgment but because the l anguage of Dr. Kilhenny’s medical opinion appeared to be equivocal. Later in the brief, Mr. Emenaker s pelled out that point with more specificity: Had Dr. Kilhenny’s opinion been cl ear and unmistakable, i.e., undebatable, then he would have simply omi tted the “it is at least as likely as not” language and the report would hav e read: It is my professional opinion that the veteran underwent a normal progression, during service; age related changes. Rather than ex press his opinion in such an unequivocal manner, Dr. Kilhenny incl uded the qualifying phrase “at least as likely as not.”2008-7051 11 A reasonable inference from t hat argument is that if Dr . Kilhenny had expressed his opinion without the purportedl y offending language, Mr. Emenaker would have had no cause to complain. It was not until his reply br ief before the Veterans Court that Mr. Emenaker contended for the first time that Dr. Kilhenny ’s opinion was insufficient to rebut the presumption of soundness becaus e it was a “medical judgmen t,” the argument that he now makes before this court. As he stat ed in his reply brief, “medical judgment evidence standing alone is legally insuffici ent to rebut the § 1111 presumption of soundness.” It is clear that Mr. Emenaker’s later argum ent is not the same as his prior one. While Mr. Emenaker’s argument in his opening brief raised a question of whether Dr. Kilhenny’s medical opinion was sufficiently unqualified to satisfy the “clear and unequivocal evidence” standard, the argument in his reply brief was that no medical opinion can be sufficient to overcome the presumption of aggrav ation, which is a distinctly different claim. The different character of the tw o arguments is underscored by the fact that we would hav e jurisdiction over the second claim, but not the first. While the claim Mr. Emenaker now presents to th is court is purely legal, the claim he presented to the Veterans Court in his opening brief would be beyond our jurisdictional reach on appeal as “a challenge to a factual det ermination” or “a challenge to a law or regulation as applied to the facts of a par ticular case.” 38 U.S.C. § 7292(d)(2). As we noted in Carbino v. West , 168 F.3d 32, 34-35 (Fed. Cir. 1999), the Veterans Court is not required to consider an appellant’s argument that is made for the first time in a reply brief in that court. In this case, the Veterans Court did not address2008-7051 12 the “medical judgment” argument made by Mr. Emenaker for the first time in his reply brief, and for those reasons, we c onsider that argument waived. In light of the somewhat confusing language used in the r egulation, the issue that Mr. Emenaker seeks to present to us is a potentially significant one; it appears, moreover, to be one that neither the Vete rans Court nor this court has squarely addressed. 2 It certainly was not addressed by the Veterans Court in this case, for the reasons we have explained. And because it would be imprudent for us to address the issue without the benefit of its having been properly presented to, and decided by, the Veterans Court, we decline to address the issue in the first instance. No costs. AFFIRMED

.

2 This court’s predecessor addre ssed similar regulatory language in an Army regulation dealing with disability retirement, see Reese v. United States , 180 Ct. Cl. 932 (1967); Siegel v. United States , 148 Ct. Cl. 420 (1960), and a judge of the Veterans Court has addressed the argum ent raised by Mr. Emenaker in a separate opinion, see Jordan v. Principi , 17 Vet. App. 261 (2003) (Steinberg, J., separate views). Those cases may provide some guidance in any fu ture consideration of the regulatory language by the Veterans Court.