## United States Court of Appeals for the Federal Circuit

2005-7190

ELIZABETH H. BONNER, Claimant-Appellant,

v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee. Mark Healy Bonner , of Great Falls, Virginia , argued for claimant-appellant. Leslie Cayer Ohta , Attorney, Commercial Litigati on Branch, Civil Division, United States Department of Justic e, of Washington, DC, ar gued for respondent-appellee. With her on the brief were Peter D. Keisler , Assistant Attorney General, and Bryant G. Snee , Assistant Director. Of counsel on the brief were David J. Barrans , Deputy Assistant General Counsel, and Jamie L. Mueller , Attorney, United States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Cour t of Appeals for Veterans Claims Chief Judge William P. Greene, Jr.

## United States Court of Appeals for the Federal Circuit

2005-7190 ELIZABETH H. BONNER, Claimant-Appellant,

v. R. JAMES NICHOLSON, Secretar y of Veterans Affairs, Respondent-Appellee.

_______________________ DECIDED: August 16, 2007

_______________________ Before NEWMAN, Circuit Judge , ARCHER, Senior Circuit Judge , and GAJARSA, Circuit Judge

. Opinion for the court filed by Senior Circuit Judge ARCHER. Dissenting opinion filed by Circuit Judge NEWMAN. ARCHER, Senior Circuit Judge

. Elizabeth Bonner (“Mrs. Bonne r”) appeals the United States Court of Appeals for Veterans Claims’ (“Veterans Court”) affirm ance of the Board of Veterans’ Appeals’ (“Board”) determination that sh e was not entitled to an effective date earlier than November 1, 1994, for dependency and in demnity compensation (“DIC”). Bonner v. Nicholson , No. 02-0742 (Vet. App. June 17, 2005) . Because we conclude that the Veterans Court neither misinterpreted Moody v. Principi , 360 F.3d 1306 (Fed. Cir. 2004), nor committed harmful error, we a ffirm the Veterans Court’s judgment.I. Rear Admiral Emmett P. Bonner (“Adm iral Bonner”) died on August 1, 1975, following a distinguished career in the United States Navy. Shortly thereafter, his wife, Elizabeth Bonner, filed a claim for DIC with t he Veterans Administration Regional Office (“RO”) listing “cancer” as the cause of Ad miral Bonner’s death. The supporting evidence filed with this clai m included an autopsy report from the National Naval Medical Center (“NNMC”) listing Hodgkin’s disease as cause of death and a death certificate listing Hodgkin’s disease as th e “immediate cause” of death. The RO determined the cause of death as Hodgkin’s disease, a form of cancer, which had been diagnosed during Admiral Bonner ’s hospitalization from January to April 1975. The RO denied the claim for DIC because there was no evidence of service connection. The decision was not appealed and, t herefore, became final. Thereafter, 38 C.F.R. § 3.313 was issued in 1990 to address service connection for injuries caused by exposure to herbicides during military service in Vietnam. It provided, in pertinent part, that “[s]ervice in Vietnam du ring the Vietnam Era together with the development of non-Hodgkin’s lym phoma [“NHL”] manifested subsequent to such service is sufficient to establish service connection for that disease.” 38 C.F.R. § 3.313(b) (1990). Th is regulation was made retroactive to August 5, 1964. 55 Fed. Reg. 43,123 (Oct. 26, 1990). The following year the Agent Orange Act of 1991 was enacted. Th is Act directed the Secretary, in certain circumstances, to establish presumptions of service connection for other diseases found to be associated with herbicide exposure while serving in the military. 38 U.S.C § 1116. An y presumption afforded by this statute was to be effective

2005-7190 2only prospectively from the date the final regulations were issued. 38 U.S.C. § 1116(c)(2). In 1994, pursuant to the Agent Orange Act, the VA added Hodgkin’s disease to the list of diseases presumptively associated with exposure to herbicides in Vietnam. 59 Fed. Reg. 5106 (Feb. 3, 1994) (in relevant part amending 38 C.F.R. § 3.309 and 38 C.F.R. § 3.307). In 1995, pursuant to a claim by Mrs. Bonner under the Radiation Exposure Compensation Act, Pub. L. No. 98-542, 98 Stat. 2725, tissue samples from Admiral Bonner were examined by the National Institutes of Health (“NIH”). The findings of this examination reported that “immunohistochemical studie s favor the diagnosis of nonHodgkin’s lymphoma.” 1 Based on this conclusion and, presumably, the above regulations promulgated in t he 1990s, Mrs. Bonner submitted a letter to the VA stating that Admiral Bonner’s death was likely rela ted to NHL; that Admiral Bonner had been exposed to radiation during his military servic e; and that she was, t herefore, entitled to DIC effective as of t he date of her 1975 claim. The RO treated this letter as a request to reopen Mrs. Bonner’s previously denied claim on the basis of new and materi al evidence under 38 U. S.C. § 5108 (2000). The RO awarded Mrs. Bonner DIC effective No vember 1, 1995, the date of receipt by the VA of her letter, based on the non-appealed finding that Hodgkin’s disease caused Admiral Bonner’s death but applying the presum ption of service connection for such

1 Contrary to the dissent’s asse rtion, the 1995 NIH report reexamining Admiral Bonner’s condition at the time of his death was ambi guous in that his illness “simulat[ed] Hodgkin’s Diseas e” but also “favor[ed] a diagnosis of non-Hodgkin’s lymphoma.” This does not demonstrate that the 1975 diagnosis of Hodgkin’s Disease as the cause of death was indi sputably incorrect. After a detailed review of the 1995 NIH report, the RO concluded that the evi dence was also consistent with Hodgkin’s Disease. Regardless, as explained below, t he cause of Admiral Bonner’s death was not relevant to the decision of the Veterans Court. 2005-7190 3disease under the Agent Or ange Act. Mrs. Bonner filed a Notice of Disagreement contending that because she filed a claim for service connection for the cause of Admiral Bonner’s death shortly after his death, the effective date for DIC should be the date on which he died, August 1, 1975. The RO subsequently issued a statement of the case which granted an earlier effective date for DIC benefits of November 1, 1994, one year prior to the November 1, 1995 application to reopen the claim. This award was based upon the regulation that provides that if a claim is reviewed more than one year after the effective date of a change in the law, as was t he case here, benefits may be authorized for a period of one year prior to the date of receipt of such request. See 38 C.F.R. § 3.114(a)(3). Following several more exchanges betwe en Mrs. Bonner and the VA, in August 1999, the RO issued a supplem ental statement of the ca se noting Mrs. Bonner’s assertion that NHL was the cause of Admi ral Bonner’s death. This supplemental statement of the case clarified the bases for the RO’s determination that the cause of Admiral Bonner’s death was Hodgkin’s disease. Specifically, the RO stated that the 1995 NIH biopsy and medical reco rds did not provide a definitive diagnosis of NHL. The RO noted that t he presence of Reed-Sternberg cell s and variants found in the 1995 biopsy was consistent with a di agnosis of Hodgkin’s disease. The RO also indicated that the final diagnosis in the 1995 repo rt of “malignant lymphoma, large cell, immunoblastic type, with necrosis involving t he lymph nodes [and] liv er,” was similarly consistent with Hodgkin’s lymphoma. Mrs. Bonner appealed this decision to the Board. The Board first noted that in order for Mrs. Bonner to re ceive benefits under 38 C.F.R. § 3.313(a), the denial of her

2005-7190 41975 claim had to have been a denial of a clai m for service connection for NHL, not a denial of service connection for another diseas e. Based on this conclusion, the Board opined that it did not need to reach the issue of whet her an effective date for an award of DIC based on Mrs. Bonner’s 1975 claim wo uld have been warranted if the RO had awarded DIC in 1995 based on a cause of death from NHL, as opposed to Hodgkin’s disease. This was “because the denial of [Mrs. Bonner’s] original claim in 1976 was a denial based on [a claim for] cause of death from Hodgkin’s disease, not NHL.” In other words, Mrs. Bonner was inel igible for retroactive ben efits under § 3.313 because her 1975 claim was for Hodgkin ’s disease and not NHL. 2 Having made this determination, the Board explained that for the reasons posited by the R O, the earliest effective date Mrs. Bonner could receive was November 1, 1994. Mrs. Bonner appealed the Board’s decision to the Veterans Court. Affirming the Board’s action, the Veterans Court concluded that “the ev idence established that Mrs. Bonner’s [1975] claim was one for Hodgkin’ s disease as the cause of her husband’s death, and, therefore, we c annot conclude that the evidence reasonably raised any claims for the cause of death by types of cancer other than Hodgkin’s disease.” Bonner , 19 Vet. App. at 19-20. The Veterans Court also noted that the Board did not disturb the RO’s finding that the evidence of record rev ealed Hodgkin’s disease as the cause of Admiral Bonner’s d eath and therefore the cause- of-death finding remained

2 Under VAOPGCPREC 5-94 (a VA Gener al Counsel Precedential Opinion) benefits under § 3.313 are awarded retroactive to “the date . . . of an original claim for that [NHL] benefit . . . if the claimant was ot herwise eligible on the date of claim.” (emphasis added). Thus, in order to receiv e benefits under § 3.313, the original claim must have been one for NHL. 2005-7190 5Hodgkin’s disease. The Veteran’s Court then concluded that “the Board had a plausible basis to find that the cause of Mr. B onner’s death was Hodgkin’s disease.” Id. at 21. Mrs. Bonner challenges the Veterans Court’s determinations. We have jurisdiction pursuant to 38 U.S.C. § 7292.
II. A. We have limited jurisdiction to review a decision of the Veterans Court. We may review the validity of “a rule of law or of any statute or regulation . . . or any interpretation thereof . . . that was relied on by the [Veterans Court] in making the decision.” 38 U.S.C. § 7292(a) (2000). Included within this review is whether the Veterans Court exceeded its jurisdiction, Wanner v. Principi , 370 F.3d 1124, 1128 (Fed. Cir. 2004) (explaining that the “Veterans Court’s compliance with its jurisdictional statute is a question of law, reviewed de novo” by th is court), and whether the Veterans Court “misinterpreted our rulings in earlie r decisions on an issue of law,” Moody v. Principi , 360 F.3d 1306, 1310 (Fed. Cir. 2004). We review de novo a claim that the Veterans Court committed legal error. Id. However, absent a constitutional issue, we lack jurisdiction to review factual findings of the Veterans Court or that court’s application of law to fact. Id. B. Mrs. Bonner alleges two errors in the Veterans Court’s decision. First, Mrs. Bonner asserts the Veterans C ourt misconstrued our decision in Moody v. Principi (“ Moody ”) when it did not read her 1975 claim for “cancer” as encompassing a claim for NHL. This position is grounded in the assertion that the clinic al findings contained in the

2005-7190 61975 autopsy report also suppo rted a determination that Admiral Bonner’s death was caused by NHL. Second, Mrs. Bonner c ontends the Veterans Court exceeded its jurisdiction when it decided a fa ctual issue, the cause of Ad miral Bonner’s death, that the Board did not reach in the first instance. Mrs. Bonner concedes that in order for her “to prevail ultimately in receiving DIC as of t he date of her original cl aim, she will have to establish that her husband died of non-Hodgkin’s lymphoma, and that her original claim was broad enough to encompass non-Hodgkin’s lymphoma.” The government argues t hat we lack jurisdiction to review the factual determination that Hodgkin’s disease was t he cause of Admiral Bonner’s death. It further argues that the Veterans Court corr ectly concluded that the Board did not err in holding that Mrs. Bonner was no t entitled to a 1975 effectiv e date for DIC benefits. Additionally, the government contends that Mrs. Bonner failed to demonstrate how the VA erred in developing her 1975 claim and that even if Mrs. Bonner were able to show that she had reasonably raised a claim for NHL in 1975 that has not yet been adjudicated, such an error is to be correct ed through a motion asserting the VA had committed clear and unmi stakable error (“CUE”). 3
C.
In Moody , we reiterated that “with res pect to all pro se pleadings,” id. at 1310, the VA must give a sympathetic reading to the veteran’s filings by “’determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations,’” id. (quoting Roberson v. Principi , 251 F.3d 1368, 1373 (Fed. Cir. 2001)). We can find no

3 The only way the RO’s unappealed 1976 decision can be collaterally attacked is through a claim of “clear and unmis takable error” (“CUE”). At oral argument, Mrs. Bonner conceded that a CUE claim was not at issue in this case. Therefore, the issue of the validity of the 1976 decision is not before us. 2005-7190 7indication that the Veterans Court misinterpreted this mandate. In fact, the Veterans Court expressly recited the legal standard quoted above. Bonner , 19 Vet. App. at 18. The Veterans Court examined the evi dence of record and concluded: At the time of the 1976 RO adjudica tion, the evidence established that Mrs. Bonner’s claim was one for Hodgkin’s disease as the cause of her husband’s death, and, theref ore, we cannot conclude that the evidence reasonably raised any claims for the c ause of death by types of cancer other than Hodgkin’s disease. Compare Moody , Szemraj , Roberson

. Id. at 19-20. Mrs. Bonner does not explain how the Veterans Court purportedly misinterpreted Moody . In Moody we rejected the Veterans Cour t’s suggestion that in order for pleadings to be read as cont aining a potential claim ther e must have been “evidence undebatably establish[ing]” the ex istence of such a claim. Moody , 360 F.3d at 1310. Mrs. Bonner does not argue that the Veter ans Court required her to make a more stringent showing than that required by Moody . Nor does she contend that the Veterans Court improperly det ermined that the mandate of Moody did not apply here. In essence, Mrs. Bonner takes issue with the Veterans Court’s application of Moody

. That is, she disagrees with th e Veterans Court’s conclusion that a claim for NHL was not supported by the evidence be fore the RO in 197 6. However, the interpretation of the 1975 claim “is essentially a factual inquiry, and it is bey ond our jurisdiction to make

2005-7190 8that determination.” Moody , 360 F.3d at 1310. 4
Mrs. Bonner also contends that the Vete rans Court exceeded its jurisdiction when it decided a factual issue—the cause of Admiral Bonner’s death—that the Board did not reach. Under 38 U.S. C. § 7261(a), the Veterans Cour t’s jurisdiction is limited to deciding issues that are “necessary to its decision and presented” to it. 38 U.S.C. § 7261(a)(4) (2000) (stating “[i]n any action brought under this chapter, the Court of Appeals for Veterans Claims, to th e extent necessary to its decision and when presented, shall . . . in the ca se of a finding of material fa ct adverse to the claimant made in reaching a decision in a case bef ore the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside or reverse such finding if the finding is clearly erroneous”). The Boar d determined that Mrs. Bonner was not entitled to DIC prior to November 1, 1994, regardless of whether Admiral Bonner’s death was caused by Hodgkin’s disease or NHL. The Veterans Court did not decide or re ly on the cause of Admiral Bonner’s death in affirming the Board’s decision. Rather , it relied on the characterization of Mrs. Bonner’s 1975 claim, evidenced by the supporting documentation, as one for death caused by Hodgkin’s disease. The Veter ans Court merely concluded that this information provided a plausible basis fo r the RO’s determination that Hodgkin’s

4 We note that when the VA fails to construe the veteran’s pleadings to raise a claim, such an error is proper ly corrected through a CUE motion. See Bingham v. Nicholson , 421 F.3d 1346, 1349 (Fed. Ci r. 2005) (explaining that the VA’s failure to consider all aspects of a claim is properly challenged through a CUE motion); Andrews v. Nicholson , 421 F.3d 1278, 1284 (Fed . Cir. 2005) (stating “w hen the VA violates Roberson by failing to construe the veteran’s plead ings to raise a claim, such claim is not considered unadjudicated but the error is instead properly corrected through a CUE motion”). CUE is not simply a “buzz word” as stated by the dissent. It is a statutorily created avenue for challenging a VA decision. See 38 U.S.C. § 5109A. 2005-7190 9disease was the cause of death. Furthermore , even if we were to conclude that the Veterans Court exceeded its jurisdiction by deciding a factual issue not “necessary” to its decision, any such error would be harmle ss, as the grounds for the Veterans Court’s decision would remain in place. Accordingl y, we need not decide if the Veterans Court exceeded its jurisdiction in this instance. III The judgment of the Veter ans Court is therefore
AFFIRMED

.

2005-7190 10

## United States Court of Appeals for the Federal Circuit

2005-7190

ELIZABETH H. BONNER, Claimant-Appellant,

v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

NEWMAN, Circuit Judge , dissenting.

The Department of Veterans Affairs relied on a plainly incorrect autopsy diagnosis to deny Mrs. Bonner the Dependency and Indemnity Compensation benefits to which she is entitled. From the panel majo rity's denial of these benefits and refusal to correct the concededly incorrect cause of death, I respectfully dissent. Admiral Emmett Peyton Bonner was a Naval officer who graduated from the United States Naval Academy in 1939. His naval career included service in World War II, Korea, and Vietnam. While in the service he was expos ed to radiation during atmospheric nuclear testing in the South Pacific in 1958, and may have been exposed to Agent Orange in Vietnam. He retired at the age of 54 and died of cancer three years later.2005-7190 2 Admiral Bonner's wife, the appellan t, applied for Dependency and Indemnity Compensation, listing the cause of death as "cancer." An aut opsy performed at the time of death by the National Naval Medi cal Center (NNMC) listed the cause of death as Hodgkin's Disease. Mrs. Bonner's claim was initially denied as not being service connected, since neither Hodgkin's Disease nor other forms of lymphoma (Non-Hodgkin's Lymphoma or NHL) were presumptively service connected. The National Institutes of Health s ubsequently reviewed the autopsy report and a group of slides that the government had preserved. The conc lusion was that the originaldiagnosis of Hodgkin's Disease was incorrect, and that Admiral Bonner died of NonHodgkin's Lymphoma. It is not disputed t hat the second diagnosis is the correct one. The panel majority, while asserting that t he cause of death is a factual matter not open to our review, speculates about the meaning and accuracy of the two autopsy reports. Thus the court proposes t hat the 1975 diagnosis of Hodgkin = s Disease as the cause of death may have been correct. The majority 's preference for the 1975 diagnosis of Hodgkin = s Disease is contrary to NIH's undisput ed conclusion that the autopsy "favors" non-Hodgkin's lymphoma, and that the earlier diagnosis was inco rrect. For example, the 1995 NIH report states that "a lthough the infiltrate contains cells which resemble ReedSternberg cells and variants, t he infiltrate lacks the usual inflammatory background of Hodgkin's disease. Immunohistochemical st udies favor the diagnosis of non-Hodgkin's lymphoma." Reed-Sternberg cells , and the "usual inflammatory background" found to be absent, are mandatory elements of Hodgkin's disease. See Ramzi S. Cotran, et al. Robbins Pathologic Basis of Disease 5th ed. 2001, App. at 96-116. The NIH report concludes with the following paragraphs:2005-7190 3 The patient was a 57 year old white ma le diagnosed as lymphocyte-depleted Hodgkin's disease in January 1975 and treated with combined chemotherapy and radiation, who died 8/ 1/75. At autopsy he was fo und to have extensive nodal and hepatic involvement by lym phoma, initially interpreted as consistent with Hodgkin's disease. The major pathological question addressed to us was whether, in light of current concepts, the tumor would be reclassified as a non-Hodgkin's lymphoma. Microscopic examination of the lym ph nodes and liver nodules show massive involvement by malignant lymphoid cells . The malignant cells are large,pleomorphic cells, with prominent nucleoli, some of which resemble ReedSternberg cells and variants. However, the background infiltrate is sparse and composed of small, mature ly mphocytes. It lacks the normal mixed inflammatory background of Hodgkin's disease as well. The malignant cells are histologically identical in appearance to those seen in the biopsies of the abdominal mass (dated 2/6/75) and ax illary lymph node (dated 4/3/75). Immunoperoxidase stains were perfo rmed on paraffin sections of the submitted surgical material and fa vor the diagnosis of non-Hodgkin's lymphoma. (See attached surgical pathology, report NIH #S95-5688) T-cell rich B-cell lymphomas simula ting Hodgkin's disease have been well described, and represent a 4-5% misdiagnos is of Hodgkin's disease. Indeed, a review of originally classified ly mphocyte-depleted Hodgkin's disease cases at the National Cancer Institut e revealed 26% with a high-grade nonHodgkin's lymphoma, the majority of t hose cases were further classified as diffuse, large cell, immunoblastic type lymphomas. The NIH report concluded that Admiral Bonner died of non-Hodgkin' s lymphoma, and the Board of Veterans Appeals agreed. See Appeal of Elizabeth Bonner , No. 96-35144 (BVA Sept. 27, 2001) at 3 (setting fort h the finding of fact that "t he RO received evidence from the National Institutes of Health (NIH) indi cating that the diagnosis of Hodgkin's disease made in the veteran's case in 1975 was in erro r and that the veteran had actually died of non-Hodgkin's lymphoma (NHL).") No contradiction to that finding is mentioned by the Board, or by the Veterans Court. My concern is not that the Regional Office initially arrived at an incorrect cause of death based on an incorrect autopsy report. My concern is that the Board refused to2005-7190 4 change its ruling despite accepting the new and unchallenged information in the NIH autopsy report, leaving the plainly incorrect diagnosis unrepealed and thereby denying the widow her entitlement. Nonetheless, the DVA has refused to corre ct the error in Admiral Bonner's records, thereby reducing the statutory benefits available to Mrs. Bonner . By statutory enactment after the Viet Nam war, Congress establis hed the presumption that deaths from both Hodgkin's Disease and Non-Hodgkin's Lymphom a are service connected, but placed different retroactive effects on these determi nations. Thus a veteran who died of NonHodgkin's Lymphoma entitles his widow to com pensation retroactive to 1964; that is, the claim benefits from the presum ption of service connection, even if the claim had been denied before the statut ory and regulatory provisions were enacted. However, compensation for Hodgkin's Disease is awar ded only for the period after the law was enacted and only for a year before the claim is f iled. (The difference appears to relate to Agent Orange exposure in Viet Nam). Thus, whether Admiral Bonner died of Hodgkin's Disease or Non-Hodgkin's Lymphoma determines whether Mrs. Bonner receives compensation from 1994 or from 1975. Mrs. Bonner filed another request for compensation in 1995, requesting compensation from the filing of her original claim in 1975. The VA, applying the rules for Hodgkin's Disease based on the original autop sy, awarded compensati on from 1994. The Regional Office refused to change the diagnosis despite the corrected autopsy report. The Board of Veterans Appeals remarked that the two autopsies reached different conclusions, but held that since the claim as originally filed was for Hodgkin's Disease, Mrs. Bonner could not receive the retroactive benefit of t he Non-Hodgkin's statute and regulations. On2005-7190 5 appeal, the Court of Appeals for Veterans Cla ims ruled that the cause of death was Hodgkin's Disease since the Regional Office had made that dete rmination and the BVA had not disturbed it. The claim as initially filed by Mrs. Bonner named "cancer" as the cause of death. It is not disputed that both Hodgkin's Diseas e and Non-Hodgkin's Lymphoma are forms of cancer. However, the Veterans Court affi rmed the BVA ruling that the initial claim for "cancer" was really a claim based on Hodgkin's Disease because t he evidence initially presented to the Regional Office stated that diagnosis. The Veterans Court refused to consider the second autopsy report. Neither Mrs. Bonner nor the VA can be charged with prior k nowledge that the original autopsy report was incorrect. The pr oper procedure is to correct the veteran's records in accordance with the correct autopsy report. It is not an unreviewable factual question of whether the VA is required to re cognize an undisputed error in the veteran's records, and to apply the correct cause of death to survivors' claims. Upon such recognition, Mrs. Bonner's claim would be subject to determination on th e correct grounds, whether or not she used the buzz-words "clear and unmistakable error (CUE)" in her petition (as the government argues ). The obligatory veteran- friendly position of the law governing veterans' claims negates this hy per-technical reason whereby the Veterans Court refused to consider the merits of Mrs. Bonner's claim. From my colleagues' acceptance of this reasoning, I respectfully dissent.