## United States Court of Appeals for the Federal Circuit

2009-7071

GEORGE WATERS, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Sean A. Ravin , Attorney at Law, of Washington, DC, argued for claimantappellant. Scott D. Austin , Senior Trial Attorney, Comme rcial Litigation Branch, Civil Division, United States D epartment of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Tony West , Assistant Attorney General, Jeanne E. Davidson , Director, and Todd M. Hughes , Deputy Director. Of counsel on the brief were David J. Barrans , Deputy Assistant Ge neral Counsel, and Dana Raffaelli , Attorney, Office of the General Coun sel, United Stat es Department of Veterans Affairs, of Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims Judge Donald L. Ivers

## United States Court of Appeals for the Federal Circuit

2009-7071 GEORGE WATERS Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretar y of Veterans Affairs, Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 07-0822, Judge Donald L. Ivers.

______________________________ DECIDED: April 6, 2010

______________________________

Before NEWMAN, FRIEDMAN, and DYK, Circuit Judges

. FRIEDMAN, Circuit Judge

. The question in this appeal is whether the Department of Veterans Affairs (“Department”) justifiably refu sed to give the appellant George Waters a medical examination to aid it in dete rmining whether his medical disabi lity during military service had a causal relationship to the different medical disabilities he suffered after his service. The United States Court of Appeal s for Veterans Affairs (“Veterans Court”), upheld the Department’s action, and we affirm. I While serving on active duty, Waters was diagnos ed with paranoid schizophrenia, which existed prior to his enlistment but was aggravated during hisservice, and he was medica lly discharged in May 1972. In December 1972, the Department granted service connection and co mpensation for that condition but, in 1976, the Department found that his condition had sufficiently improved such that he was no longer entitled to disability payments. After Waters was diagnosed some years later with hypertension, depression, and diabetes mellitus, he filed cl aims with the Department for service connection and compensation for those conditions. He contended that his diabetes mellitus and hypertension were secondary to his in-s ervice schizophrenia, alleging that the antipsychotic drugs administered to him du ring service caused these conditions; and that his depression was second ary to his diabetes. He stat ed that he served in Vietnam and that his exposure to the herbicide Agent Orange while there caused his diabetes. The Department, in a regional office’s decis ion, denied all of Waters’ claims. It found that there was insuffici ent evidence to show a connec tion between schizophrenia and diabetes or hypertension; and that Waters ’ service records indicated that he had not served in Vietnam and had not been exposed to herbicides during his service. The Department’s Board of Vete rans’ Appeals (“Board”) upheld those rulings, concluding that “there is no com petent medical evidence or record showing a nexus between the veteran’s military service” and his conditions. In his appeal to the Veterans Court, Waters primarily contended that the Department had not adequately a ssisted him in developing his claims because it had not provided him with a medical examination. That court hel d that Waters had not made a sufficient showing to entitle him to a medica l examination. The Ve terans Court stated that “[t]he Board correctly noted that where the determinat ive issue involves medical

2009-7071 2causation . . . lay assertions of medical status do not constitute medical evidence” sufficient to require such an examination. The only issue Waters raises in his appeal to this court is his alleged entitlement to a physical examination. He contends that the Board and the Veterans Court misinterpreted the governing st atute and applied an incorrect and prejudicial evidentiary standard in denying his claim. II The government urges us to dismiss this appeal, on the ground that it raises only factual issues, which we have no jurisdiction to review. Unless an appeal from the Veterans Court “presents a constitutional i ssue,” this court “may not review . . . a challenge to a factual determinati on, or . . . a challenge to a law or regulation applied to the facts of a particular case .” 38 U.S.C. § 7292(d)(2). We may, however, review a decision of the Veterans Court “with respect to the validity of a decision of the [Veterans Court] on a rule of law or of any statute or regul ation . . . or any interpretation thereof . . . that was relied on by the [Veterans Court] in making the decision.” 38 U.S.C. § 7292(a). The government argues that the issues Wate rs raises “involve only the Veterans Court’s factual determinations and application of law to the facts of this particular case.” As explained in part III bel ow, however, Waters contends that, in denying him a medical examination, the D epartment misinterpreted and mis applied the governing statutory provisions. That is precisely the kind of legal issue this cour t has jurisdiction to review. See, e.g. , Willsey v. Peake , 535 F.3d 1368, 1370–73 (Fed. Cir . 2008) (holding that a case in which the Veterans Court fails to apply the correct legal test presents “a prima

2009-7071 3facie legal claim and provides grounds for this Court to take juri sdiction over [it].”). We have jurisdiction over Waters’ appeal with respect to the legal issues he raises. III Section 5103A of Title 38 of the Unit ed States Code, c aptioned “DUTY TO ASSIST,” states: “(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.” T he statute further pr ovides that in a claim for disability compensat ion, the assistance provided by the Secretary under subsection (a) shall include providing a medical examinatio n or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d)(1). The statute states that the Secretary Shall treat an examin ation or opinion as being necessary to make a decision on a claim fo r purposes of paragraph (1) if the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant)— (A) contains competent evidence t hat the claimant has a current disability, or persistent or re current symptoms of disability; and (B) indicates that the disability or symptoms may be associated with the claimant’s active militar y, naval, or air service; but (C) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d)(2). These subsections thus provide three guidelines for determining whether a medical examination or opinion is necessary for the Secretary “to make a decision in a

2009-7071 4claim.” Subsections A and B address, respecti vely, the evidence necessary to establish the veteran’s present disability and its connec tion to his military service. Subsection C relates to the evidence the Secretary requi res to decide these issues. Such an examination or opinion is nec essary if the evidence befor e the Secretary contains “competent evidence” of the “c laimant’s disability” (subsec tion A) and “indicates” that the disability “may be associated with” the claimant’s active military service (subsection B), but does not contain “sufficient medica l evidence” for the Secretary to make a decision (subsection C). Since these three s ubsections of the same statutory provision contain different evidentiary standards—“ competent evidence,” “evidence . . . . indicat[ing],” and “medical evidence”—it woul d seem that Congress intended them to provide for separate, although perhaps related, evidentiary guidelines. See, e.g. , Russello v. United States , 464 U.S. 16, 23 (1983). The Board found that there was “no co mpetent evidence of a nexus” between each of Waters’ current maladies and his active military service. It repeated this conclusion in almost identic al language in its opinion, again stating that “there is no competent medical evidence or record” showing the necessary nexus. This finding of a lack of “competent” evidence appears to apply the standard of subsection A above, which deals with the veteran’s current dis ability, rather than the apparently lessdemanding standard in subsection B of “evidence” that “indicates” that the veteran’s disability “may be associated” with the ve teran’s active military service. Waters contends that the Board thus im properly applied the stricter standard of subsection A in making its nexus determinat ion under subsection B. Waters further contends that the Veterans Court perpetuated that error when it upheld the Board’s

2009-7071 5finding that “a remand for such [medical] opi nions was not required due to the absence of competent medical evidence showing a nexus between the appellant’s claimed condition and service or his service-connected disability.” The Board’s reference to “competent ” evidence relating to the nexus between Waters’ current disabilities and his in-ser vice schizophrenia was unfortunate and illadvised. The Board appeared to use the evidentiar y standard in subsection A in applying subsection B and thus subjecting the veteran to a more onerous standard of proof than the stat ute provides. See 38 U.S.C. § 5107(b). All the Board needed to have said was that the record before it did not indicate that Waters’ current disabilities had a causal connection or were associat ed with his active military service. But, however one views the Board’s appa rent interpretation and application of subparagraph B, the Veterans Court found that “[t]he record in the instant case is devoid of any evidence that the appellant’s di abetes mellitus, hypertension, or depression were caused or ag gravated by his schizophrenia other than the appellant’s own statements suggesting that such a link exists.” We cannot review this factual determination. Since Waters has not show n any factual basis for his claim, any possible error by the Board in using the wrong standard under subsection B could not have prejudiced Waters. In making its “determinations . . . the [V eterans] Court shall take due account of the rule of prejudicial error.” 39 U.S.C. § 7261(b)(2). This provision “requires the Veterans Court to apply the same kind of ‘ha rmless-error’ rule that courts ordinarily apply in civil cases.” Shinseki v. Sanders , 556 U.S. ----, 129 S.Ct. 1696, 1704 (2009); see also Szemrai v. Principi , 357 F.3d 1370, 1375–76 (Fed. Cir. 2004).

2009-7071 6Before the Veterans Court, Waters had the burden of showing that “an[y] error [by the Board was] harmful.” Id . He has not done so. Waters there asserted two grounds to s upport his claim of a nexus between his military illness and his present medical problems. First, he stated that he had been given medication during his service that caused his hypertension. The Veterans Court stated that the B oard found “that there was no competent medical evidence suggesting a link between any of the claimed disabilities and the appellant’s service-connected sc hizophrenia,” and that the “Board also correctly noted that ‘[w]here the determinative issue involves medical causat ion . . . lay assertions of medical status do not constitute com petent medical evidence” pursuant to Grottveit v. Brown , 5 Vet. App. 91, 93 (1993), and Espiritu v. Derwinski , 2 Vet. App. 492, 494 (1992). R. at 3. The court approved the Board’s “express[ ] find[ing] that a remand for such [medical] opinions was not required due to the absence of competent medical evidence showing a nexus between the appellant ’s claimed condition and service or his service-connected disability.” We interpret those statements by the Veterans Court as a ruling that, in the absence of any medical evidence, Waters’ own conclusory statements regarding causation were insufficient to establish the necessary nexus between his in-service schizophrenia and his present ailments. To interpret those statements, as Waters apparently does, as holding that establishing such a nexus nec essarily requires medical evidence would be inconsistent with Jandreau v. Nicholson , 492 F.3d 1372, 1377 (Fed. Cir. 2007). There this court rejected as “too br oad” the Veterans Court’s “conclusion . . . that ‘competent medical evi dence is required . . . [when] the determinative issue

2009-7071 72009-7071 8 involves either medical etiol ogy or a medical diagnosis.’” Id. The Department must consider lay evidence, but may give it what ever weight it concludes the evidence is entitled to. Second, Waters contended that his service records had been falsified to conceal his service in Vietnam during which he allegedly had been exposed to the herbicide Agent Orange, which he alleged caused his diabetes. He presented no factual basis for this claim of falsification. The Board reje cted it, based on his service record that did not show service in Vietnam. It ruled that he had not shown a nexus between his service schizophrenia and his current diabetes. We have no jurisdiction to review this factual determination. At oral argument Waters contended that his conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of subsection B. Since all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case. If Congress had intended that requiremen t, presumably it would have explicitly so provided. We reject Waters’ theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues. CONCLUSION The judgment of the Veterans Cour t dismissing Waters’ action is AFFIRMED

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