UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS 

No. 03-0133

WILLIAM C. CROMER, APPELLANT,

V.

R. JAMES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before IVERS, Chief Judge, and LANCE and DAVIS, Judges.

O R D E R

The appellant, through counsel, appeals a January 15, 2003, decision of the Board of

Veterans' Appeals (Board or BVA) that denied entitlement to service connection for dementia. Both

parties filed briefs, and the appellant filed a reply. This appeal is timely, and the Court has

jurisdiction over the case pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court

will affirm the Board’s decision.

The appellant had active service in the U.S. Army from December 1945 to May 1947.

Record (R.) at 20. In October 1993, he filed a claim for service connection for organic affective

dementia, alleging that it came about when he "suffered a fever of 108 degrees while assigned at Ft.

Sill, Oklahoma during November 1945 related to consumption of milk contaminated with

streptococci agent." R. at 172. His claim indicated that he tried to acquire his service medical

records (SMRs) from the National Personnel Records Center (NPRC), but they informed him that

his SMRs were not on file and were likely destroyed in a fire in 1973. R. at 173. His claim also

included a physician's statement, saying that his mental disability dated from the time of his inservice illness. R. at 174. VA attempted to obtain alternative records, and in May 1994, it received

hospital extracts from the Office of the Army Surgeon General (SGO) showing brief periods of

hospitalization for pharyngitis and peritonsillar abscess in 1945. R. at 181-83. The appellant's claim

was subsequently denied, and he unsuccessfully attempted to reopen the case in 1996. R. at 185,

253-55. The appellant appealed to the Board, and in March 1998, the Board remanded for

readjudication. R. at 316-18. A November 1999 Board decision affirmed the regional office's (RO's)

denial of the appellant's claim. R. at 387-99. The appellant appealed to this Court, and in December

2001, this Court granted a joint motion for remand. R. at 411. The appellant appealed to this Court

again, and in December 2001, the Court granted another joint motion for remand. R. at 444. The

Court's 2001 remand resulted in the decision presently on appeal.

In the decision on appeal, the Board concluded that the duty to assist had been satisfied.

With regard to the merits of the claim, the Board denied service connection for dementia, finding

that "[d]ementia began decades after service, and there is no credible competent medical evidence

to link it to service." R. at 16. The Board noted that several medical professionals stated that the

appellant's condition had its origin in service. However, the Board observed that no objective
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medical evidence supported those opinions. As the Board stated: "Since 1993, the veteran's story

has been repeated by him to other doctors, and doctors have passed the story on to one another." R.

at 14. The Board also stated that

it is not until the 1990s, in connection with the claim for service connection, that the

veteran came up with the story of the bad milk, brain infection, etc[.], in service.

Then too, while his story may not be a conscious fabrication, it comes from an

individual with dementia, and doctors have described his recent flawed memory,

confusion, and other impaired thought processes surrounding his dementia illness.

In sum, the veteran's account of in-service events is not credible. 

R. at 15.

The appellant raises only one issue on appeal. He makes a policy argument, saying that the

Court should apply an "adverse presumption" where SMRs have been lost or destroyed while in

Government control, thereby requiring the Agency to disprove a claimant's allegation of injury or

disease in service in these particular cases. He argues that an evidentiary imbalance is created by the

Government's negligent destruction of SMRs, and thus he should be entitled to a presumption that

shifts the burden of proof to VA to disprove his alleged in-service brain infection. The appellant

does not rely on a statute or regulation from which the presumption should be inferred but rather asks

the Court to create a presumption based only on general rules of proof that create an unfair

disadvantage and on equitable factors. 

The Secretary argues for affirmance, because, he argues, the appellant has made no factual

or legal challenge to the decision, he does not point to any error by the Board, and he does not take

issue with the plausibility of the Board decision, the evaluation of the evidence, or the reasons or

bases for the Board's decision. He also states that the appellant's policy argument advocating

application of an adverse presumption is misconceived. Furthermore, he argues that, because the

appellant offers no facial challenge to the Board decision, and explicitly waives all procedural issues

on appeal, the appellant has abandoned the opportunity to challenge the Board's findings. Moreover,

the Secretary asserts that the appellant's argument that the burden of proof should shift to the

Secretary in cases where records are lost or destroyed is misconceived because the Court has

previously addressed the issue and VA has acted in accord with the law. Finally, the Secretary

argues that the adoption of an adverse presumption in cases where records are lost or destroyed

would act to shift the burden of proof from the appellant to the Secretary, in contravention of statute.

This Court has long held that issues not raised on appeal are considered abandoned. See

Disabled Am. Veterans v. Gober, 234 F.3d 682, 688 n.3 (Fed.Cir. 2000)(stating that the court would

"only address those challenges that were briefed"); see also Bucklinger v. Brown, 5 Vet.App. 435

(1993). The appellant explicitly states that he is raising only one issue before the Court. Appellant's

Brief at 6. He makes no argument with respect to the Board's determination that dementia began

many years after service and was not caused by any incident of service. Nor does he challenge the

Board's legal conclusion that dementia was not incurred in or aggravated by service. Moreover, he
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points to no error by the Board with regard to the Board's heightened duty to explain its findings and

conclusions when it is presumed that SMRs were destroyed. See Russo v. Brown, 9 Vet.App. 46,

51 (1996). Furthermore, he makes no attempt in his reply brief to argue against abandonment of the

issues. Because the appellant has not raised any issue contained in the Board decision, those issues

are deemed abandoned, and the Board decision must be affirmed.

The appellant does, however, make an argument with respect to adverse presumption.

Initially, he relies on Apusento Garden, Inc. v. Superior Court of Guam, 94 F.3d 1346 (9th Cir.

1996), but Apusento is not controlling on this Court, and it is inapposite. The Court notes that it has

previously addressed the issue of lost or destroyed records held by the Government. In O'Hare

v. Derwinski, 1 Vet.App. 365, 367 (1991), the Court held that when SMRs are presumed destroyed,

"the BVA's obligation to explain its findings and conclusions and to consider carefully the benefitof-the-doubt rule is heightened." This rule has become well entrenched in the Court’s caselaw.

Stewart v. Brown, 10 Vet.App. 15, 19 (1997); Ussery v. Brown, 8 Vet.App. 64, 68 (1995); Doran

v. Brown, 6 Vet.App. 283, 286 (1994); Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992); Moore

v. Derwinski, 1 Vet.App. 401, 406 (1991). Notably, the Court clarified this rule in Russo, where an

appellant argued that he was entitled to a heightened "benefit of the doubt" because of the destruction

of his SMRs. The Court in Russo stated that established caselaw does "not establish a heightened

<benefit of the doubt,' only a heightened duty of the Board to consider applicability of the benefit of

the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the

veteran's medical records have been destroyed." Russo, 9 Vet.App. at 51. In the present case, the

Board noted the apparent destruction of records. The Board also noted that VA's additional efforts

to obtain records resulted in the discovery of SGO extracts. Furthermore, the appellant has not

complained, before this Court or the Board, that the duty to assist was not satisfied, or that the Board

failed to recognize its heightened duty to consider the benefit of the doubt rule, to assist in

development of the claim, or to explain its decision. See Russo, supra. Thus, because VA met its

duty to assist the appellant, and the appellant made no effort to challenge VA's assistance, the Court

finds that the duty to assist was satisfied.

The appellant would have this Court develop an adverse presumption against the Secretary

based on the 1973 fire at the NPRC. The appellant relies upon an article that concludes the origin

of the fire was never determined. Walter W. Stender & Evans Walker, The National Personnel

Records Center Fire: A Study in Disaster, 37 THE AMERICAN ARCHIVIST, 521, 544 (1974). There

are existing presumptions for service connection that have been created by Congress and codified

in statute. The existing presumptions recognized in the VA statutory scheme generally relate to

circumstances involving combat. See 38 U.S.C. §§ 1116, 1117, 1118, 1133. The appellant does not

argue that the presumption that he seeks is derivative of any of these presumptions, or is even

implied by any other statute or regulation.

Furthermore, the Court has acknowledged widely accepted, nonstatutory presumptions

relating to official acts. The presumption of regularity in mailing, and the presumptions of delivery

and receipt are nonstatutory, judicially developed presumptions that avoid wasteful litigation about

routine actions in the absence of clear evidence of nonperformance. See Ashley v. Derwinski, 2
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Vet.App. 62, 65 (1992) (citing multiple United States Supreme Court decisions and holding that the

presumption of regularity applies to official acts of public officers absent clear evidence to the

contrary); see also Matthews v. Principi, 19 Vet.App. 23, 27 (2005) (describing the scope of the

presumption). The appellant does not argue that the presumption he seeks is derivative of these or

any nonstatutory presumption previously recognized by this Court.

Instead, the appellant argues that an adverse presumption against the Secretary should be

adopted based solely on general principles of evidence and equity. This, the Court is unwilling to

do where the appellant's argument does not apply to the facts of this case. As the appellant concedes,

an adverse-presumption rule has historically been associated with bad-faith destruction of records.

See Morris v. Union Pac. R.R., 373 F.3d 896, 901 (8th Cir. 2004); see also Coates v. Johnson &

Johnson, 756 F.2d 524, 551 (7th Cir. 1985) (stating that bad-faith destruction of a document

pertinent to an issue at trial gives rise to an inference against the party responsible for its

destruction). Although recent cases have held that an adverse inference does not require a showing

of bad faith and recognize that negligent destruction of documents should also be sanctioned in order

to restore the evidentiary balance, the appellant has not demonstrated that either of those

circumstances is present here. See Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)

(recognizing that a rebuttable presumption can be created against the defendant where the defendant

is responsible for the negligent loss or destruction of evidence essential to plaintiff's case); Welsh v.

United States, 844 F.2d 1239, 1248 (6th Cir. 1988); Turner v. Hudson Transit Lines, Inc., 142 F.R.D.

68, 75 (S.D.N.Y. 1991). Again, we reiterate that the appellant has not demonstrated that either bad

faith or negligent destruction of documents was implicated in the 1973 fire at the NPRC. Hence, in

the absence of the necessary factual predicate, we need not decide whether the presumption advanced

by the appellant should be adopted.

Upon consideration of the foregoing, it is

ORDERED that the January 15, 2003, Board decision is AFFIRMED.

DATED: July 8, 2005 PER CURIAM.