## United States Court of Appeals for the Federal Circuit

2007-7108

MARGARITA DELAROSA, Claimant-Appellant,

v.
JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee. Louis J. George , National Veterans Legal Services Program, of Wa shington, DC, argued for claimant-appellant. With him on the brief were Barton F. Stichman and Christine M. Cote

. Martin F. Hockey,Jr. , Assistant Director, Commerc ial Litigation Branch, Civil Division, United States Depa rtment of Justice, of Washington, DC, argued for respondent-appellee. On the br ief were Peter D. Keisler , Assistant Attorney General, Jeanne E. Davidson , Director, Mark A. Melnick , Assistant Director, and Marla T Conneely , Attorney. Of counsel on the brief were David J. Barrans , Assistant General Counsel and Y. Ken Lee , Attorney, United States Departm ent of Veterans Affairs, of Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims Judge Robert N. Davis

## United States Court of Appeals for the Federal Circuit

2007-7108

MARGARITA DELAROSA, Claimant-Appellant,

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

Appeal from the United States Court of Appeals for Veterans Claims in 04-1225, Judge Robert N. Davis.

__________________ _________ DECIDED: January 31, 2008

_________ __________________ Before RADER, PROST, and MOORE, Circuit Judges

. MOORE, Circuit Judge

. Margarita DeLaRosa (Mrs. DeLaRosa), the widow of veteran Albert DeLaRosa (Mr. DeLaRosa), appeals a decision of the United States Court of Appeals for Veterans Claims (Veterans Court), which affirmed an Ap ril 14, 2004, Board of Veterans’ Appeals (Board) decision denying her claim for dependen cy and indemnity compensation (DIC), i.e., service-connected death benefits. DeLaRosa v. Nicholson , 21 Vet. App. 418 (2006). We affirm.I. BACKGROUND Mr. DeLaRosa served on active duty fr om May 1967 to March 1970, including combat service in Vietnam. He married Mrs. DeLaRosa in 1980. The couple separated in early 1994. Mr. DeLaRosa died from a gunshot wound to the head as the result of suicide after killing his daughter in July 1994. Six years after Mr. DeLaRosa’s death, in April 2000, Mrs. DeLaRosa filed a DIC claim with the Department of Veterans Affairs (VA). T he VA has defined DIC as a monthly payment made by the VA to a surviv ing spouse, child, or parent “[b]ecause of a service-connected death occurring after Dece mber 31, 1956.” 38 C.F. R. § 3.5(a)(1). Mrs. DeLaRosa contended that Mr. DeLaRosa had post-traumatic stress disorder (PTSD) due to his combat service and that the PTSD led to the suicide. Mrs. DeLaRosa submitted lay test imony from another daughter and from a co-worker of Mr. DeLaRosa, both of whom discussed Mr. DeLaRosa’s combat and post-service experiences. Mrs. DeLaRosa also submitted a medical opinion from Dr. John H. Fullerton, an internist and geriatrician, stat ing that he believed that Mr. DeLaRosa may have suffered from undiagnos ed and untreated PTSD, which may have originated from his combat service and led to his violent be havior. This medical opinion was issued six years after Mr. DeLaRosa’s death, and was based upon prolonged discussions with Mrs. DeLaRosa. In December 2000, a VA regional office (RO) denied Mrs. DeLaRosa’s DIC claim because there was no confirmed diagnosis of PTSD. Mrs. DeLaRosa appealed the RO decision to the Board and the Board denied her claim. The Board found that Mr. DeLaRosa was never diagnosed wit h a psychiatric condition during his lifetime and that

2007-7108 2“[t]here [was] no medical evidence from t he veteran’s lifetime that he had PTSD.” In re DeLaRosa , No. 03-14 001, slip op. at 7 (Bd. Ve t. App., Apr. 14, 2004). The Board affirmed the RO’s findings a nd concluded that “the availa ble evidence shows that the most obvious reasons for the veteran’s suici de [were] the bitter dispute with his wife and his killing of his own daughter.” Id. at 8. The Board also det ermined that Dr. Fullerton’s medical opinion was entirely speculative and without probative va lue, and that the various lay statements submitted by Mrs. D eLaRosa, suggesting that Mr. DeLaRosa’s suicide was caused by PTSD, did not consti tute competent medical evidence. The Board concluded that Mr. DeLaRosa did not have a service-connected psychiatric disorder that caused or cont ributed to his suicide. Mrs. DeLaRosa appealed the Board decision to the Veterans Court. The Veterans Court affirmed the Board’s decision, determining that the Board’s conclusion that there was no basis for service connection for the cause of Mr. DeLaRosa’s death was not clearly erroneous. The Veterans Court also determined that the VA was not required to obtain a medical opinion as part of its duty to assist under 38 U.S.C. § 5103A because there was no valid diagnosis of PTSD and because the record contained no evidence of a caus al connection between Mr. DeLaRosa’s military service and the cause of his death. The Veter ans Court entered judgment, and this appeal followed. II. DISCUSSION The scope of our review of a Veterans Court decision is limited by statute. See 38 U.S.C. § 7292. Under § 7292(a), we may review a decision by the Veterans Court with respect to the validity of “any statute or regulation . . . or any interpretation thereof

2007-7108 3(other than a determination as to a factual matter) that was relied on by the [Veterans] Court in making the decision.” We must a ffirm a Veterans Court decision unless it is “(A) arbitrary, capricious, an abuse of discr etion, or otherwise not in accordance with law; (B) contrary to constitutional right, powe r, privilege, or immunity; (C) in excess of statutory jurisdiction, aut hority, or limitations, or in viol ation of a statut ory right; or (D) without observance of proc edure required by law.” Id. § 7292(d)(1). Further, absent a constitutional issue, we may not review challenges to factual determinations or challenges to the application of a law or regulation to facts. Id. § 7292(d)(2). We review interpretation of statutes and regul ations by the Veterans Court de novo

. Smith v. Nicholson , 451 F.3d 1344, 1347 (Fed. Cir. 2006). Both parties agree that the Veterans Court committed an error of law by analyzing Mrs. DeLaRosa’s DIC claim under s ubsection (d) of 38 U.S.C. § 5103A, rather than under subsection (a). However, the parties disagree as to the effect of this error. The relevant subsections of 38 U.S. C. § 5103A, which out lines the Secretary’s duty to assist a claimant, provide: (a) Duty to assist. (1)The Secretary shall make reasonabl e efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law adm inistered by the Secretary. (2) The Secretary is not requir ed to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim . . . . (d) Medical examinations for compensation claims. (1) In the case of a claim for dis ability compensation, the assistance provided by the Secretary under subsection (a) shall include providing a medical examination or obtaining a medical opinion when such an examination or opin ion is necessary to make a decision on the claim. . . .

2007-7108 4Mrs. DeLaRosa contends that the VA’s dut y to obtain a medical opinion under 38 U.S.C. § 5103A(d) does not apply to a DIC claim, but that the VA had a duty under 38 U.S.C. § 5103A(a) to obt ain a medical opinion to help substantiate her DIC claim. The Government agrees that the VA’s duty to obtain a medical opin ion under § 5103A(d) does not apply to a DIC claim. However, the Government cont ends that § 5103A(a) cannot be read to require the Secretary to provide a medi cal examination or opinion, because that reading would obviate the need for § 5103A(d). We agree with the Government. 38 U.S.C. § 5103A(a)(1) provi des a general requirement in all cases for the VA to “make reasonable efforts to assist a claim ant in obtaining evidence necessary to substantiate the claimant’s claim for a [VA] benefit.” In contrast, 38 U.S.C. § 5103A(d)(1) requires that “[i]n the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (a) shall include providing a medical examination or obtaining a medi cal opinion when such an examination or opinion is necessary to make a decision on the claim . . . .” Section 5103A(d)(1) explicitly limits its app licability to claims fo r disability compensation. 1 If § 5103A(a)(1) always required the Secretary to assist a cl aimant with providing a medical examination or opinion, then § 5103A(d)(1) would be rendered meaningless. “It is a long-held tenet of statutory interpretation that one section of a law should not be interpreted so as to render another section meaningless.” Princess Cruises, Inc. v. United States , 201 F.3d 1352, 1362 (Fed. Cir. 2000). Therefore, we hold that 38 U.S.C. § 5103A(a) does not

1 The VA has defined the term “disab ility compensation” as a monthly payment made by the VA to a veteran “if t he veteran is disabled as a result of a

2007-7108 5always require the Secretary to assist the cl aimant in obtaining a medical opinion or examination. Under § 5103(A)(a), the Secretary only needs to make reasonable efforts to assist a claimant in obtai ning a medical opinion when such opinion is “necessary to substantiate the claimant’s claim for a benefit.” The Board made a factual finding that a medical opinion was not necessary to decide the claim under § 5103A(d). In re DeLaRosa , No. 03-14 001, slip op. at 6 (Bd. Vet. App., Apr. 14, 2004). Here, the B oard determined that there was no medical evidence of PTSD during the veteran’s lifetim e and that his suicide was the result of willful misconduct, not unsound mind. Our ju risdiction precludes us from reviewing factual findings or even the application of law to facts. In light of t he Board’s finding that the even more restrictive § 5103A(d) did not require the Secretary to provide a medical opinion and our holding that § 5103A(a) does not always requi re the Secretary to obtain a medical opinion, we conclude that the Veterans Court’ s application of § 5103A(d) was harmless error. Additionally, Mrs. DeLaRosa argues that t he Veterans Court misinterpreted 38 C.F.R. § 3.302, which explains circumstances under which su icide will be considered to have resulted from mental unsoundness rather than from “willful misconduct.” A finding of the latter would bar entitlement to benefits based upon the ve teran’s death. See 38 C.F.R. § 3.303(a). The relevant subsection of § 3.302 provides: (b) Evidence of mental condition. (1 ) Whether a person, at the time of suicide, was so unsound mentally t hat he or she did not realize the consequence of such an act, or was unable to resist such impulse is a question to be determined in each indivi dual case, based on all available

personal injury or disease . . . while in acti ve service if the injury or the disease was incurred or aggravated in line of duty.” 38 C.F. R. § 3.4(a), (b)(1).

2007-7108 62007-7108 7 lay and medical evidence pertaining to his or her mental condition at the time of suicide. Mrs. DeLaRosa contends that the Veterans C ourt misinterpreted § 3. 302 by requiring “a prior finding of service connection” during t he veteran’s lifetime for the regulation to apply. The Government counters that Mrs. D eLaRosa misinterprets the Veterans Court decision. Specifically, the Government contends that the Veterans Court did not expressly require an actual determinati on of service connection for a psychiatric condition prior to Mr. DeLaRosa’s death, but required a determination of service connection for a psychiatric condition before service connection for mental unsoundness, if presumed from t he suicide, could be establis hed. The Veterans Court stated that “[s]ervice connection for ment al unsoundness presumed as a result of suicide or a bona fide attemp t, as addressed in § 3.302, may be granted only where a service-connected disability and the requi rements for service connection are already established” and that “without a prior finding of service c onnection the provisions of § 3.302 are not applicable.” DeLaRosa v. Nicholson , 21 Vet. App. 418 (2006). We agree with the Government. Section 3.302 does not require that a determination of service connection for a mental disorder be made prior to the veteran’s death to establish service connection for mental unsoundness, and the Veterans Court did not impose such a requirement. Ra ther, the Veterans Court required a determination of service connection for PTSD prior to the application of § 3.302. For the foregoing reasons, the judgm ent of the Veterans Court is AFFIRMED

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