UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O . 09-0757

J A M E S L

. P A R R I S H , A P P E L L A N T ,

V

. E R I C K. S H I N S E K I , S E C R E T A R Y O F V E T E R A N S A F F A I R S , A P P E L L E E

.

On Appea l from the B oard of Veter ans' Appea ls (Arg ued January

27, 2011 Dec ided April 22, 2011)

Glenn R. Bergmann , with w hom Daniel D. W edem eye r was on the brief, both of Be thesda, Maryland, for the appellant.

Lavinia A. Derr , with whom W ill A. Gunn , Gene ral Counsel; R. Randall Campbell , Assistant Gene ral Counsel; a

nd Richard Maye rick , Deputy Assistant Gene ral Counsel, w ere on the brief, all of Washington, D.C., for

the appe llee.

Be fore KASOL D, Chief Judge , and MOORMAN a nd DAVI S, Judges

. KASOL D, Chief Judge , filed the opinion of the Court. DAV I S, Judge , filed an opinion
concur ring in the result.

KASOL D, Chief Judge : Veter an J ames L

. P ar ri s h appea ls throug h counsel that part of a Fe bruar y 9, 2009, decision of the Boa rd of Veter ans' Appea ls (B oard) that denied disability
compensa tion for chronic obstructive pulmonary disease (C OP D) and pulmonary fibrosis, both 1 cl aimed to be a result of in-servic e radia tion exposure, beca use the disabiliti es are not s er v i ce

connec ted. Mr. Parrish' s initial arg ument to the Cou rt fo cu s ed o n the adequa cy of the Boa rd' s statement of rea sons or bases for its decision with reg ard to its relianc e on the proce dure employ ed

an d decisions obtained by the Secre tary in acc ordanc e with 38 C.F.R. § 3.311(c) , a reg ulation

" C O P D " i s a n y d i s o r d e r c h a r a c t e r i z e d b y p e r s i s t e n t o r r e c u r r i n g o b s t r u c t i o n o f b r o n c h i a l a i r f l o w , s u c h a s 1

c h r o n i c b r o n c h i t i s , a s t h m a , o r p u l m o n a r y e m p h y s e m a

. D O R L A N D ' S I L L U S T R A T E D M E D IC A L D IC T IO N A R Y 5 3 8 ( 3 1 s t e d

. 2 0 0 7 ) [ h e r e i n a f

t e r D O R L A N D ' S ]

. " P u l m o n a r y f i b r o s i s " i s t h e f

o r m a t i o n o f f

i b r o u s t i s s u e i n t h e l u n g s

. I d

. a t 7 1 2 a n d 1 5 7 5

.perta ining to the Secre tary ' s radia tion exposure claim adjudication proce ss. On November 16, 2010,

the Court aff

irmed the B oard' s decision. Mr. Parris h timely soug ht rec onsideration, specific ally contending that 38 C.F.R. § 3.100 does not permit the Under Secre tary for Ben ef i t s (U S B) to deleg ate obligations that expressly are place d upon him by § 3.311(c)

. Although this specific arg ument was not raised in his initial brief, it is sufficie ntly rela ted to h i s i n i tial arg ument to g rant rec onsideration, and the November 16 decision was withdrawn. Be cause this specific issue has not previously been decide d by the Court, it was ref err ed for decision by a panel of the Court. Frankel v. Derwi n s ki , 1 Ve t .App. 23, 25-26 (1990). Fo r t he rea sons set forth below, the Court holds that (1) the express desig nati o n o f

re s p onsibili ty to the US B stated in § 3.311(c) does not limit the US B' s authority under § 3

. 1 0 0 t o desig nate the Compensation and Pension (C&P) Service Di re ct o r (C &P Cirector) to rende r the opinion require d by § 3.311(c) , and (2) Mr. Parrish other wi s e fails to demonstrate err or in the Boa rd' s decision. Ther efor e, the B oard' s decision will be af firmed. I. F ACTS Mr. P arr ish serve d on active duty from J anuar y 1957 to Dec ember

1959. I n Aug ust 1999, he submitt ed a disability compensa tion claim for , inter alia, COPD and pulmonary fibrosis from
exposure to in-servic e radia tion. Wit h his claim, Mr. Parrish submitt ed an Aug ust 1999 letter from his private phy sician who opined that his conditions "c erta inly could hav e b ee n ca used by his
exposure to rad i at i o n

. " Record (R.) at 504. Responding to a reque st from the St. Petersburg , Florida , reg i o n al office (RO), the Def ense Threat Reduction Ag ency (DTRA) confirme d that Mr. Parrish was prese nt at Oper ation PL UMBB OB , a U.S. atmospheric nuclea r test series conducte d in Neva da in 1957, but that he had not been exposed to measura ble radia tion. The RO denied the claim in a Novembe r 2001 ra ting de cision. I n J uly 2002, Mr. Parrish submitt ed a Notice of Disag ree ment and an article discussing possible health problems of veter ans wh o p a r ti c ip a ted in nuclea

r wea pons testing. The RO continued its de nial of the claim in a J anuar y 2004 Statement of the Case. With his appeal to the Boa rd, Mr. Parrish submitt ed another letter from his private phy sician dated Fe bruar y 23, 2004. The matter was forwa rded to the RO fo r m o re development and an additional dose estimate from DTRA was

2obtained. Acc ording to a November 2007 letter from DTRA, DTRA beg an a new policy to provide

worst-c ase ra d i at ion dose estimates to g ive the maxi mum benef it of the doubt to veter ans and to

ensure that repor

ted doses are not less than actua l doses. Although Mr. Parrish orig inally was found
to have nonmeasura

ble exposure to radia tion, under the new policy , DTRA estima t ed that Mr. Parrish could not have been exposed to more than 16 rem ex t ernal g amma dose, 1 rem external
neutron dose, 1 rem internal committed dose to his lung (alpha ), and 3 rem internal committed dose to his lung (be ta + g amma). I n Dec ember

2007, the RO reque sted from the C& P Service a decision re g arding the issue of service connec tion for COPD and pulmonary fibrosis seconda ry to ioniz ing radia tion exposure. The reque st included "inf ormat i o n as required by the manual," to wit: (a) Pertinent service information; (b) the circ umstances, including the dates of exposure; (c) descr ipti o n of disease claimed; (d) ag e at time of exposure, (e) dosag e estimate; (f) time lapse betwee n exposure and onset of disease ; (g ) g ender , pertinent fa mily history and employ

ment history ; ( h) history

of exposure to k n o w n c a rcinog ens or radia tion, including smoking; and (i) other rele vant information. R. a t 2 3 0

- 3 1

. The C&P Direc tor subsequently forwa rded this information to the Under Secre tary for Hea lth. The subject line of the me morandum re ads: " Radiation Review - 38 C.F .R. § 3.311." R. at 222. I n J uly 2 0 0 8 , t he chief public health and environmenta l hazards office r (CPHEHO)

re sponded to the C&P Direc tor' s reque st. I n sum, the CPHEHO noted that Mr. Parr i s h 's d o s e 2 estimates of 16, 1, 1 a

nd 3 rem we re the worst-c ase assumptions, a nd that althoug h the I

ntera ctive Radioepidemiolog ical Prog ram is used to estimate the likelihood that radia tion e x posure is rela ted
to maligna

nt neoplastic disease, the prog ram did not cove r non-ne oplastic disease suc h as C OPD 3 and pu l m o n ar y fibrosis. The CPHEHO noted the following rese arc h finding s: (1) There wer e no peer -re viewed studies documenting a statistically s ig n if ic a n t a s s o c ia ti o n b e tw e en pulmonary fibrosis or COPD and a dose response to r adiation exposure; ( 2) some rese arc h showed a sig nificant doseT h e p a r t i e s d o n o t t a k e i s s u e w i t h t h e a p p a r e n t d e l e g a t i o n o f a u t h o r i t y i n t h i s i n s t a n c e

. B e c a u s e t h e m a t t e r w a s 2

n o t a d d r e s s e d b y t h e B o a r d o r a r g u e d b y t h e p a r t i e s , t h e C o u r t w i l l n o t f u r t h e r a d d r e s s i t

. S e e C a r b i n o v

. W e s t , 1 6 8 F

. 3 d 3 2 , 3 5 ( F e d

. C i r

. 1 9 9 9 ) ( n o t i n g t h a t t h e C o u r t p r o p e r l y d e c l i n e d t o c o n s i d e r c o n t e n t i o n s t h a t w e r e n o t r a i s e d b y t h e
a p p e l l a n t )

.

" N e o p l a s t i c " m e a n s p e r t a i n i n g t o " n e o p l a s m , " w h i c h i s a n y n e w a n d a b n o r m a l g r o w t h ; s p e c i f i c a l l y a n e w 3 g r o w t h o f t i s s u e t h a t i s u n c o n t r o l l e d a n d p r o g r e s s i v e

. S e e D O R L A N D ' S a t 1 2 5 8

. 3response rela tionship for respira tory disease and other non-neopla stic diseases, but smoking al s o aff ects nonc ance r mortality ; (3) additional rese arc h confirme d these findings but noted t hat i t was
not possible to rule out a model with a threshold as high as 50 rem for other non-neopla stic diseases; 4 (4) lifetime noncanc er risks for people exposed as adults to 100 rem wer e simil ar to those for solid

canc er, and for people exposed as children, t h e ri sks wer e about half as g rea t. Noting that Mr. Parr i s h wa s a former smoker, the CPHEHO conclude d in light of the stated rese arc h that it was unlikely that M r. P ar rish' s COPD and pulmonary fibrosis can be attributed to in-servic e ioniz ing radia tion ex posure. R. at 219. Subsequently , the C&P Direc tor conducte d radia tion revie w and noted, inter alia, the 5 CPHEHO' s medical opinion, the worst-c ase dosag e estimates from DTR A, that Mr. Parrish' s conditions wer e diag nosed 40 y ear s afte r exposure t o i o n izi ng radia tion, and that Mr. Parrish
repor ted having been a smoker for 29 y ear s. The C&P Direc tor opined that there was no rea sonable possibili ty that Mr. Parrish' s COPD and pulmonary fibrosis are the result of his exposure to ioniz ing radia tion in service

. There afte r, the RO issued a Supplemental Statement of the Case continuing the denial of the claim. On appeal , t h e Bo ard explained that the matter hinge d on knowledg e of the
amount of radiation exposure endure d by Mr. P arr ish. The Boa rd denied disability compensa tion beca use, inter alia, the CPHEHO' s and C&P Direc tor' s opinions wer e based on complete historical data with reg ard to Mr. Parrish' s radia tion exposure while Mr. Parrish' s private phy sician' s opinion was not. Mr. Parr ish tim ely appea led.

T h e C P H E H O o p i n i o n d i s c u s s e s d o s e e s t i m a t e s i n t e r m s o f t h e " s i e v e r t " ( s v ) , w h i c h i s t h e u n i t o f r a d i a t i o n 4

a b s o r b e d d o s e e q u i v a l e n t , d e f i n e d a s t h a t p r o d u c i n g t h e s a m e b i o l o g i c e f f e c t i n a s p e c i f

i e d t i s s u e a s 1 g r a y o f h i g h

- e n e r g y
x - r a y s ; 1 s i e v e r t e q u a l s 1 0 0 r e m

. S e e D O R L A N D ' S a t 1 7 3 3

.

A l t h o u g h t h e C & P D i r e c t o r 's o p i n i o n i s d a t e d J u n e 2 3 , 2 0 0 8 , w e p r e s u m e t h a t t h e d a t e i s a n e r r o r b e c a u s e t h e 5 t e x t o f t h e C & P D i r e c t o r 's o p i n i o n e x p r e s s l y r e f e r s t o t h e " J u l y 1 0 , 2 0 0 8 , m e m o r a n d u m f r o m t h e [ C P H E H O ] , w r i t i n g f o r t h e u n d e r S e c r e t a r y

. " R

. a t 2 2 0

. N e i t h e r M r

. P a r r i s h n o r t h e S e c r e t a r y r a i s e d , n o r d o e s t h e C o u r t d i s c e r n , a n y p r e j u d i c i a l e r r o r h e r e

. 4II. ANALYSIS A. The Par

ties' Arg uments 1. Primary Issue Mr. Parrish arg ues that 38 C.F.R. § 3.311(c) desig nates the USB as the sole authority to make the radia tion deter

mination require d by § 3.311, and that 38 C.F.R. § 3.100 does not permit him to deleg at e t h e au t h ority to make this deter mination. Mr. Parrish further arg ues that, assuming deleg ation is permitted, no such dele g ation has bee n made. The Secre tary arg ues that the USB complied with § 3.311(c) beca use he revie wed the matter throug h his ag ent, the C&P Direc tor, who repo rt s d i rectly to the USB, and that the USB has the authorit y to desig nate supervisory personne l such as the C&P Direc tor to make finding s under applicable law and regul ation in acc ordanc e with 38 C.F.R. §§ 2.6(b) and 3.100. The Secre tary further contends that the issue of deleg ation was settled in Hilkert v. W est , 12 Vet.App. 145 (1999) (en banc)

. At oral arg ument, the Se cr et ar y as serted that the USB proper ly desig nated the C&P Direc tor to make decisions on his behalf in ac corda nce w ith the Veter ans Be nefits Administration Adjudication Procedures M anual (M21-1MR). See M21-MR, pt. I V, subpt. ii, ch. 1, sec. C. This issue is discussed in subsection B, be low. 2. Additional Issues Mr. Parrish also arg

ues that the Boa

rd provided an inadequa te statement of rea sons or bases for its decision with reg ard t o t h re e ad ditional issues. First, he arg ues that the C&P Direc tor inadequa tely explained his decision such that the Boa rd err ed when it did not seek another decision in contra vention of Stone v. Gober , 14 Vet.App. 116 (2000)

. S ec o n d , he arg ues that the Boa

rd inadequa tely explained how the C&P Direc tor' s deci s ion and the CPHEHO' s opinion are more probative than his private phy sician' s opinion. Finally , he arg ues that the Boa rd' s statement is inadequa te because there is no evidenc e of rec ord t h at t h e C&P Direc tor has m edica l expertise or training

. The Sec reta

ry contends that the Boa

rd' s decision is ex plained ade quately and is not clea

rly

err oneous. He rea sons that the Boa rd explained that the CPHEHO and the C&P Direc tor provided detailed repor

ts based u p o n co rr ec t reg ulatory criter ia, and the Boa rd did not rely on the C&P Direc tor' s decision as medic al evidenc e.

5These issues a re discusse d in subsection C, below. B. D ecision Proce ss Under 38 C.F .R. § 3.311 Veter ans are awa

rded disabi l i t y compensation for disabiliti es resulting from injuries or diseases that are incurre d in or ag g rava ted by service

. 38 U.S.C. §§ 1110 and 1310. For disability
compensa tion claims based upon in-servic e radia tion exposure, the Secre tary has established a specia l adjudication proce ss. S ee 3 8 C

. F. R. § 3.311 (2010); see also Stone , 14 Vet.App. at 119; Hilkert , supra

. Succinctly stated, radia tion e x posure claims must be ref err ed to the USB for consideration when a claimant, at a minimum , was exposed to ioniz ing radia tion as a result of participa tion in the
at mospheric testing of nuclea r wea pons, 38 C.F.R. § 3.311(b)( 1)(i), subsequently develope d a radiog enic disease, 38 C.F.R. § 3.311(b)( 1)(ii), and, the radiog enic disease beca me manifest within the period specifie d in 38 C.F.R. § 3.311(b)( 5). I f a c ondition is not rec og nized by reg ulation as a "r adiog enic disease," the claim never theless must be ref

err ed to the USB when a claimant "ha s cited

or submitt ed competent scientific or medical evidenc e that the claimed condition is a radiog enic disease." 38 C.F.R. § 3.311(b)( 4). Mr. Parrish' s claim was forwa rded to the USB pursuant to subsection (b)( 4). Once forwa

rded, § 3.311(c) dictates the p ro ce s s

. Pursuant there to, the US B is require d to evalua te the claim with ref ere nce to specific criter ia laid out in § 3.311(e)

. As noted in Hilkert , 12 Vet.App. at 149, beca

use th e US B's consi dera tion of the claim "r elies heavily on medical and scientific finding s a

n d a n a ly s is , the [US B] may reque st an advisory opinion from the Under Secre tary for Hea lth." The USB then fo rw ar d s his decision, with supporting rationale , to the RO for adjudication of the claim. 38 C.F.R. § 3.311(c) and (d). The C&P Direc tor is not mentioned in the
reg ulation as having a role in this proce ss, which forms the basis of Mr. Parrish' s primary arg ument. 1. Hilkert is not Control ling Contrary to the Secre tary ' s contention, Hilkert , supra , is not binding or settled authority on whether the USB may deleg ate, or has deleg ated, authority to the C&P Direc tor to rende r the revie w and deter mination called for in § 3.311(c)

. Although Hilkert includes a statement that the RO "pr operly ref

err ed the claim to the Direc tor of Compensation and Pension for revie w who acte d on behalf of the USB," 12 Vet.App. at 149, the authority to deleg ate was n o t an issue in the case

.

6I ndeed, the issue was not arg ued or develope d, and its resolution was not nece ssary to the outcome

of the case

. See id

. at 158 n.15 (Steinberg , J ., dissenting) (noting that the appellant expressly declined to challeng e the issue of deleg ation of authority to the C&P Direc tor and that the issue was not addre ssed by the Court's decision). The passing mention of a proper ref err al, there fore , is dicta that does not settle the i ssue. Jama v. Immigration and Customs Enforcement , 543 U.S. 335, 352 n.12 (2005) (" Dictum settles nothing, even in the court that utters it."); B L A C K ' S L A W D I C T I O N A R Y 1101 (7th ed. 1999) ( defining "obiter dictum" a s "[a] judicial comment m ade during the course of delivering a judicial opinion, but one that is unnece ssary to the decision in the case and there fore not
prec edential)

. 2. Authority to Designate Congr ess has vested the Secre tary with b ro ad authority to deleg ate and to authorize

succe ssive rede leg ation with reg ard t o al l laws administered by the VA. Section 512 of title 38 provides in per

tinent part: (a) Ex cept as otherwise pr ovided by law, the Secre tary may assig n functions and duties, and deleg ate, or authorize succe ssive redele

gation of , authority to act and to render decisions , with respe ct to all laws admi n i s t ered by the Depa rtment, to such office rs and employ ees as the Secr etary may find
nece ssary

. See 38 U.S.C. § 512(a) (e mphasis added)

. By reg ulation, the Secre tary has vested the USB with "a uthority to act on all matters assig ned
to the Veter ans Be nefits Administration except as provided i n § 1

. 7 7 1 [ ]

. . . and to authorize 6 supervisory or adjudicative personne l w ithin his/her jurisdiction to perf orm such functions as may be assig ned." 38 C.F.R. § 2.6(b)( 1) (2010). The authority to act on those matters within the rea lm of t he USB' s authority is further deleg ated to superviso ry o r adjudicative personnel designa ted by the USB, to wit: (a) Authority is delegated to the Under Secre tary for Be nefits and to supervisory or adjudicative personne l within t h e jurisdiction of the Veter ans Be nefits Administration designated by the Under Se cretary , to make finding s and dec isions under the applicable laws, reg ulations, prec edents, and instructions, as to entitlement of claimants to benef

its under all laws administered by the Depa rtment of Veter ans

6 T h e r e c u r r e n t l y i s n o p r o v i s i o n o f V A r e g u l a t i o n a t § 1

. 7 7 1

. 7Affa irs g overning the pay ment of monetary benef

its to veter ans and their depende nts, within the jurisdiction of the Compensation and Pension Service.

See 38 C.F.R. § 3.100(a) (2010) ( emphasis adde d). Mr. Parrish does not dispute that the Secre tary has broad statutory authority to deleg ate and rede l egate authority to act with respe ct to all laws administered by VA, and that he has deleg ated authority to the USB to desig nate others under his control to make finding s and rende r decisions with
reg ard to entitlement to VA benef its. Rather, Mr. Parrish arg ues that (1) the Secre tary has restric ted the authority to make the radia tion deter mination require d by § 3.311 solely to the USB, and (2) the
reg ulatory history for § 3.311(c) impliedly prohibits deleg ation. I n support of his first arg ument, Mr. Parrish notes that § 3.311(c) cites only the USB a s the offic er to make the ra diation determination require d by § 3.311, wh i ch he arg ues ref lects the Secre tary ' s decision that authority to make the radia tion deter

mination may not be further deleg ated. I n further sup p o rt of this arg ument, Mr. Parrish notes that 38 C.F.R. § 3.321(b), a provision addre ssing extraschedular rating deter minations,
vests decisionmaking in either the USB or the C&P Direc tor, ref lecting that the Secre tary knows how to vest authority

to act in more tha

n one off icial when he so chooses. Mr. Parrish' s observa tions in support of h i s fi rst arg ument ignor e at least two fac ts that demonstrate the Secre tary did not restric t the broad authority of the US B gra nted in § 3.100(a) to desig nate the C& P Director ( or other supervisory or adjudicative personne l w ithin the jurisdiction of the Veter ans Be nefits Administration) to make the radia tion deter mination require d in § 3.311(c)

. First, there has been a longsta nding prac tice of the C&P Direc tor making decisions under 38 C.F.R. § 3

. 3 11(c) , as ref

lected in our case law over at least the past 19 y ear s. See Davis v. Brown , 1 0 Vet.App. 209, 210 (1997) (noting that in April 1992, the RO ref err ed the claim to the C&P Direc tor);

see also Hilkert , 12 Vet.App. at 149 (noting that the RO forwa rded the matter to the C&P Direc tor for revie w, who acte d on behalf of the USB). The Secre tary ' s awa rene ss that the C&P Direc tor has been making the radia tion deter mination, as demonstrated by case s the Secre tary has litigated befor e the Court, and his inaction, demonstrate' s the Secre tary 's approva l of the proce ss, including the deleg ation of authority

. Cf. Bob Jones Univ. v. United States , 461 U.S. 574, 600-01 (1983) (noting that Congr ess' s awa

rene ss of an administrative age ncy ' s regu l at o ry interpre tation for 12 y ear s and Congr ess' s failure to act on bills proposed on the subject the reg ulations interpre ted provides support

8that Congr ess acquie s c e d , a n d the ref ore ag ree d, with the ag ency ' s reg ulatory interpre tation). Fur ther, althoug h Hilkert is not controllin g in this case as discussed above, the Court notes that Hilkert is cited as authority for the promulg ation of § 3.311. Thus, the procedure s employ ed for a radiation claim under § 3.311 in Hilkert are informative of VA' s common prac tice in adjudicating these claims. Second, Ve t er ans Be nefits Administration's M21-MR establishes the proce dure for adjudicating claims under 38 C.F.R. § 3.311. The manual states that the RO should forwa rd claims to the C&P Service when the thr ee r equire ments of 38 C.F.R. § 3.311(b)(1) ar e met. I t also states that the C&P Service is responsible for providing the RO with an opinion rec ommending either that the claim be g rante d or denied. See M21-MR, pt. I V, subpt. ii, ch. 1, sec. C, 23-24; see also Brannon

v. Derwinski , 1 Vet.App. 314, 316 (1991) (" ' [C ]ourts m ay take judicial notice of fac ts of universal notoriety , wh i ch need not be proved, and of whateve r is g ener ally known within their jurisdictions.'" (quoting B.V.D. Licensing Corp. V. Body A ct i o n Deisgn, Inc. , 846 F.2d, 727, 728 (F ed. Cir. 1988)))

. As head of the C&P Serv i ce , t h e C&P Direc tor is an appropr iate officia l to provide such an opinion. And, as noted above, the Secre tary ' s inaction with reg ard to direc ting any chang e to the M21-MR r efle cts his a cce ptance of the proce dures contained there in. Cf

. Bob Jones Univ. , supra

. Contrary to Mr. Parrish' s second arg ument, the reg ulatory history for § 3.311(c) do es not impliedly prohibit deleg ati o n

. M r. P arrish corr ectly notes that the first proposed version of § 3.311(c) vested decisionmaking in the then-titled chief medical direc tor, b u t in r e s p o n s e to c o mm e n ts that ref err al to the chief medical direc tor appea red to transfe r rating jurisdiction from the then-na med Depa rt m ent of Veter ans Be nefits to the Depa rtment of Medicine and Surg ery , the provision was amende d to c larify that the final decision rested with the then-titled chief benef its direc tor and that he could re q u es t an advisory opinion from the chief medical direc tor. See 50 Fe d. Reg

. 34,452, 34,456 (Aug

. 26, 1985). Although this is an acc urate statement of the history of § 3.311(c) , it fails 7

" C h i e f b e n e f

i t s d i r e c t o r " a n d " c h i e f m e d i c a l d i r e c t o r " a r e f o r m e r t i t l e s f

o r t h e " u n d e r s e c r e t a r y f o r b e n e f i t s " 7

a n d " u n d e r s e c r e t a r y f

o r h e a l t h , " r e s p e c t i v e l y

. T h e t i t l e s w e r e c h a n g e d t o t h e i r c u r r e n t f o r m o n l y t o m a t c h t h e c o r r e c t
s t a t u t o r y t i t l e s

. S e e 6 0 F e d

. R e g

. 9 6 2 7 ( F e b

. 2 1 , 1 9 9 5 )

. M o r e o v e r , t h e " D e p a r t m e n t o f V e t e r a n s B e n e f i t s " a n d t h e

" D e p a r t m e n t o f M e d i c i n e a n d S u r g e r y " a r e f o r m e r t i t l e s f

o r t h e " V e t e r a n s B e n e f

i t s A d m i n i s t r a t i o n " a n d " V e t e r a n s H e a l t h A d m i n i s t r a t i o n , " r e s p e c t i v e l y

. 9to show any intent on the part of t he S ecr etar y t o p rohi bit desig nation of responsibili ty to office rs

who are within the Depa

rtment of Veter ans B enef its today , such as the C&P Direc tor. Rather, the history indicates only that t h e S ecr etar y intended to clar ify that jurisdiction to decide veter ansbenef its matters remaine d with the appropr iate administration. 3. Designation of C&

P Director Mr. Parrish contends that even if the USB had the authority to deleg ate authority to the C&P Direc tor to make the radia tion deter mination require d by § 3.311(c) , the USB never did so. At oral
arg ument, Mr. Parrish noted t h at VA direc tives entitled "D eleg ations of Authority " establish VA policy that authority may be deleg ated only throug h written deleg ation memoranda , if not otherwise deleg ated by statute or VA reg ulation. See , e.g. , VA Direct i v e 0 0 0 0 (2009), available at http:// www.va .g ov/vapubs/sear ch_ action.cf m? dTy pe=1. He further noted that there is no evidenc e i n t h e rec ord on appea l that a corr esponding deleg ation memorandum has been executed that d el eg ates authority to the C&P Direc tor. Mr. Parrish there fore arg ued that the C&P Direc to r's radia tion determination was ultra vires. I nitially we note that Mr. Parrish cites to nothing in the rec ord indicating he raised this issue below, or that it rea sonably was ra i s ed by the rec ord; thus it was not err or for the Boa rd to not devel op or addre ss this issue. See Pond v. W est , 112 Vet.App. 341 (1999) (B oard is require d to develop all issues rea sonably raised below); Talbert v. Brown , 7 Vet.App. 352, 356 (1995) (noting that the Boa

rd must addre ss rea sonably raised issues and is not obliga ted to "c onduct an exercise in
prog nostication")

. Acc ording ly , it also is not surprising that a deleg ation memorandum is not in the

rec ord on appea l as i t was not an issue below, and the s imple fac t that such a memorandum is not in the rec ord fails to overc ome the presumption that g overnme nt officia ls g ener ally discharg e their duties in acc ordanc e with the law and g overning reg ulations. Rizzo v. Shinseki , 580 F.3d 1288, 1292 (2009) (" ' [T] he doctrine

. . . allows courts to presume that what appea rs reg ular is reg ular, the burden shift i n g t o t he attacke r to show the contra ry ,' " and stating that "nothing in this Court's prec edent limit s the presumption to proce dural matters" ) (quoting Butler v. Principi , 2 4 4 F. 3 d 1 337, 1340 (2001)) ); Borg-W

arner Corp. v. Comm'r , 660 F.2d 324, 330 (7th Cir. 1981) (Unde r the presumption of reg ularity and in the absence of any indication to the contrary , it is pres umed t hat authority has been deleg ated proper ly

. (citing United S t a t es v. Ahrens , 530 F.2d 781, 786 (8th Cir. 1976) and

10Lesser v. U.S. , 368 F.2d 306, 309 (2d Cir. 1966))) ; United States v. Masusock , 1 U.S.C.M.A. 32, 36- 37 (1951) (same) ; see also Fugere v. Derwinski , 1 Vet.App. 103, 105 (1990) (" Advanc ing differ ent
arg uments at succe ssive stag es of the appellate proce ss does not serve the interests of the parties or the Court. Such a prac tice hinders the decision-making proce ss and raises the undesirable specte r of piece meal litiga tion."). Moreove r, Mr. Parrish essentially ignor es the broad authority to act on m att ers within the jurisdiction of the Veter ans Be nefits Administration that has been deleg ated in reg ulati o n by the Secre tary to the USB and an y p er s o ns desig nated by the USB. See 38 C.F.R. § 3.100(a)

. I n this context, the specific require ments of VA Di rective 0000 (2009) are inapposite, as it addre sses deleg ation, as opposed to desig nation. Although the M21-MR does not specific ally desig nate the C&P Direc tor to rende r the radia tion deter mination, it clea

rly place s responsibility for the radia tion deter mination with the C&P Service , which implicitl y desig nates the C&P Direc tor to exercise the authority deleg ated in § 3.100(a)

. I n sum, we find a proper deleg ation of authority in § 3.100(a) , and, in the M21-MR, a proper desig nation of the C&P Direc tor to exercise that deleg ation of authority

. Acc ording ly , Mr. Parrish' s contention that the C&P Direc tor' s decision is ultra vires is without merit. C. Remaining I ssues on Appea l The rec ord does not su p p ort Mr. Parrish' s other arg ument that the Boa rd provided an inadequa t e s t at em en t of reasons or bases. I n support of hi s arg ument, Mr. P arr ish asser ts that the Boa rd (1) relied on a

n inadequa tely

explained decision of the C& P Director unde r 38 C.F.R. § 3.311(c) (1), contrave ning Stone , supra , and (2) inadequa tel y explained how t he C &P Director' s decision and the CPHEHO' s opinion are more probative than his private phy sician' s opinion beca use (a) both opinions are , themselves, explained inadequa tely and (b) there is no evidenc e of rec ord that the C&P Dire ctor ha s medical e x pertise or training

. 1. The Board's Duty To Provide Adequate Rationale and the Court's Standar d of Revie w Dec isions of the Boa

rd shall be based on all applicable provisions of law and reg ulation, and the B oard sha ll provide a written statement of rea sons or bases for its conclusions. See 38 U.S.C. § 7104(a) , (d)( 1). The Boa rd is not require d to discuss all of the evidenc e of rec ord, see Dela Cruz

v. Principi , 15 Vet.App. 143, 149 (2001), but it should not reje ct evidenc e favor able to the claimant without discussing that evidenc e, see Mey er v. Brown , 9 Vet.App. 425, 433 (1996), and its ove rall

11statement "must be adequa te to enable a claimant to understand the prec ise basis for the Boa rd' s decision, as well as to fac ilitate revie w in this Court." Allday v. Brown , 7 Vet.App. 517, 527 (1995). Moreove r, the Boa

rd may find an unfavor able medical opinion more probative than a favor able one

as long as it articula tes understanda ble and valid rea sons for doing so. Nieves- Rodriguez v. Peak e , 22 Vet.App. 295, 300 ( 2008); see also Stefl v. Nicholson , 21 Vet.App. 120, 124 ( 2007). The Boa rd' s finding s reg arding the probative value of medical opinions, as well as its

u l t imate finding whether a disability is service connec ted, is subject to the "c lear ly er ro n eo u s " standard of revie w. See Owens v. Brown , 7 Vet.App. 429, 433 (1995) (B oard' s assig nment of g rea ter probative weig ht to one medical opinion than to another is subject to the "c lear ly err oneous" standard

o f review); see also Russo v. Brown , 9 Vet.App. 46, 50 (1996) (noting that a finding of service

connec tion, or lack ther eof, is a f inding of fac t review ed under

the "c lear ly

err oneous" standard of revie w). A finding is clea

rly err oneous when "' althoug h there is evidenc e to support it, the revie wing
court on the entire evidenc e is left with the defi n i t e an d fi rm conviction that a mistake has been committed.'" Gilbert v. Derwinski , 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948)); see also Padgett v. Nicholson , 19 Vet.App. 133, 147- 48 (2005).

2. Substantive Requirem ents for Decisions Under 38 C.F.R. § 3.311 Section 3.311(c) (1) also require s a cer tain deg ree of detail in decisions made there under. I t provides in per

tinent part: (1) [T] he Under Secre tary for Be nefits shall consider the claim with ref ere nce to the fac tors specifie d in para g raph (e) of this section and may reque st an advisory medical opinion from the Under

Secre tary for He alth. (i) I f afte r such co n s i d era tion the Under Secre tary for Be nefits is convince d sound scientific and medical evidenc e supports the conclusion it is at least as likely as not t h e v et era

n' s disease resulted from exposure to radia tion in service , the Under Secre tary for B enef

its shall so inform the reg ional office of jurisdiction in writing. The Under Secre tary for Be nefits shall set fo rt h the rationale for this conclusion, including an evalua

tion of the claim under the applicable fac tors specifie d in para g raph ( e) of

this section. (ii) I f the Under Secre tary for Be nefits deter mines there is no rea sonable possibili ty that the veter an' s disease resulted from radia tion exposure in service , the Under Secre tary for Bene fits shall so i n fo rm the reg ional office of j urisdiction in writing , setting f orth the ra tionale for this conc lusion.

12See 38 C.F.R. § 3.311(c) (1). Applica ble fa ctors under

subsection (e ) ar e the f

ollowing: (1) The probable dose, in terms of dose ty pe, rate and duration as a fac tor in inducing the disease, taking into acc ount any k n own limit ations in the dosimetry device s employ ed in its measure ment or the methodolog ies employ ed in its estimation; (2) The rela tive sensitivity of the involved tissue to induction, by ioniz ing radia tion, of the spec ific patholog y ; (3) The veter an' s g ender

and per tinent family

history ; (4) The veter an' s ag e at time of e x posure; (5) The time-lapse be tween e x posure a nd onset of the disea se; and (6) The extent to which exposure to radia tion, or other car cinog ens, outside of service may have c ontributed to development of the disease.

38 C.F.R. § 3.311(e)

. I f the USB ultimately rec ommends that there "is no rea sonable possibili ty that the veter an' s disease resulted from radia tion exposure in service ," see 38 C.F.R. § 3.311(c) (1)( ii), the USB is not require d to discuss in his decision ea ch o f t h e s ubsection (e) fac tors. Hilkert , 12 Vet.App. at 149. Rather, the fac tors should be considere d and consulted as a point of ref ere nce. Id. at 149-50. 3. The Board's Decision is Adequately Ex plained and is Not C learly Erroneous Mr. Parrish relies on Stone , supra , for the proposition that the C&P Direc tor' s decision here lacke d sufficie nt e xp la

nation as to why there is no rea sonable possibili ty that Mr. Parrish' s conditions resulted f rom radia tion ex posure in ser vice. I n Stone , the radiation decision provided by the US B

was cursor

y an d l ac k ed discussion of any of the § 3.311(e) fac tors. Specifica lly , the USB stated: "We have rec eived a medical opinion from the Under Secre tary [for Hea lth] , with which we ag ree , that advises it is unlikely that the veter an' s car cinoma of the rec tum and anal are a resulted from his
exposure to ioniz ing radia tion in service ." Stone , 14 Vet.App. at 120. The Court further noted that "[t]here is no articula tion of the Board' s rea sons for finding the [US B' s] opinion convincing , but rathe r a mere restate ment of [t he USH' s medical] opinion in conjunction with the d en i al of presumptive ser

vice c onnection." Id

. I n contra st to the circ umstances in Stone , the Boa rd here noted the C&P Direc tor' s discussion of (1) Mr. Parrish' s in-servic e radia tion exposure history , including dose rem data, (2) rac e, sex, ag e, and persona l data, (3) famil y history of canc er, postemploy ment history , and 29-y ear history of smoking, (4) the CPHEHO' s repor t, which found no statistically signific ant association betwee n Mr. Parrish' s condit i o n s an d d ose response to radia tion exposure, and (5) the fac t that COPD and

13pulmonary fibrosis wer e diag nosed 40 y ear s afte r in-servic e ioniz ing radia tion exposure. Thus, the

C&P Direc tor' s decision was neither cursor y nor lacking in discussion, and the Boa rd did not err in rely ing on it. Mr. Parrish also fails to otherwise point t o an y ev i d ence that the C&P Direc tor' s decision fa iled to substantively comply with § 3.311(c)( 1) or our holding in Hilkert , supra

. Although Mr. Parrish asser ts that the stated information still fails to e x plain adequately the C&P Direc tor' s ultimate decision, he ignor es the commonsense meaning of eac h stated fac t, and that the C &P Director' s conclusion flows natura lly from the sum of those meaning s. For instance, the C&P Direc tor noted that (1) the CPHEHO repor t found no statistically signific ant association betwee n Mr. P ar rish' s conditions, (2) smoking is a fac tor, and (3) Mr. Parrish admitted that he smoked for 29 y ear s and Mr. Parrish also was not diag nosed with his lung conditions until 40 y ear s afte r in-servic e exposure. The C&P Direc tor, conclude d, then, that there is no rea sonable possibili ty that Mr. Parrish' s conditions resulted from e x posure to in-ser vice r adiation. Although not stated with the highe st d egr ee o f prec ision, the C&P Direc tor' s decision is understanda

ble and the Boa

rd did not commit err or when it relied on it. See McClain v. Nicholson , 21 Vet.App. 319, 321 (2007) (noting that althoug h clar ity cer tainly is pref

err ed, it "is not and cannot be demande d in ever

y instance or finality would fore ver be delay ed pending perf ection in draf tsmanship"); see also Maxson v. Gober , 230 F.3d 1330, 1333 (F ed. Cir. 2000) (re cog nizi ng that leng thy periods of time without sy m p t o m s or trea tment can weig h ag ainst a claim); Polovic v. Shinseki , 23 Vet.App. 48, 54 (2009) (noting that the Boa rd may not awa

rd benef its when the awa

rd would be based upon pure specula tion). This is particula rly so beca

use it is the Boa

rd that ultimately is r equire d by statute to expl ain its decisionmaking . 38 U.S.C. § 7104(d) (1); see , e.g. , Gabrielson

v. Brown , 7 Vet.App. 36, 40 (1994) (discussing that it is the Boa rd, not medical examiners, that has the duty to discuss favora

ble evidenc e in a state ment of re asons or ba ses). Simi larly , we find unsuppor te d M r

. Pa r r is h ' s a s s e r

tions that the Boa

rd inadequa tely explained why both the CPHEHO' s opinion and th e C& P D irec tor' s decision outweig hed his private phy sician' s repor t. As we explained in Nieves- Rodriguez , and as was noted by the Boa rd below, the foundation and rationale of a medical opinion ar e cr u cial when the Boa rd compar es medical opinions and

assesses the weig ht to b e p ro v i d ed there to. Id

. I t is axiom atic that a medical examiner must be informed of

the " rele vant fa cts" in order to r ender a proba tive opinion. Id. at 303.

14The Boa rd here noted th a

t M r

. Parrish' s private phy sician essentially opined that Mr. Parrish' s conditions wer e cause d by sever al fac tors including radia tion exposure and smoking, and stated that he was not awa

re of Mr. Parrish' s actua l radia tion exposure count. I n contra st, the Boa rd explained that the CPHEHO' s opinion was based upon the worst-c ase estimate of in-servic e radia tion exposure and that the CPHEHO found it unlikely that Mr. Parrish' s lung conditions wer e cause d by in-servic e radia tion exposure. Although Mr. Parrish arg ues that the Boa rd did not explain why knowledg e of the amount of radia tion is particula rly important, it is commonly understood that the deg ree of

r a d ia ti on exposure is a fac tor for consideration when assessing the rela tionship of disease to radia tion exposure. Moreove r, VA r eg ulations require radia tion ex posure dose estimates, see 38 C.F.R. § 3.311(a) , and Mr. Parrish' s private phy sician essentially said that he could not r ender an acc urate opinion without s uch informa tion. Mr. Parrish' s final arg ument is that the Boa rd did not explain why it found the C&P Direc tor' s decision was more probative than his private phy sician' s opinion when t he rec ord contains no evidenc e that the C&P Direc tor is a qualified medical profe ssional. As noted by the Secre tary , the C&P Direc tor' s decision is not medical evide nce pe r se. Rather, it is a decision that is based upon the fac tors in § 3.311(e) , as well as an advisory medical o p i n i o n

. Hi l ke rt , 12 Vet.App at 149 (re cog nizi ng that, beca

use the decision under § 3.311(c) is to be based on sound scientific evidenc e,

an advisory medical opinion may be reque sted). The Boa rd explained that the C&P Direc tor based his decision on the CPHEHO' s medical opinion, which was found to be more pro b at i v e t han the medical opinion provided by Mr. Parrish' s private phy sician

. Acc ording ly , the Boa rd' s weig hing of the medical evidenc e is understanda ble and fac ilitative of judicial revie w. See Allday , supra

. And, based on the rec ord on appeal , t he Boa rd' s finding s are plausible and not clea rly err oneous. See Russo and Owens , both supra ; see also Gilbert , supra

.

III. CONCLUSION Upon considera

tion of the fore g oing, the Boa rd' s Fe bruar

y 9, 2009, decision is AFF I RMED.

DAVI S, J udg e, concur

ring : Whil e I concur with the judgme nt of the majority opinion, I write
separ ately to express my disag ree ment wi t h the m ajority ' s analy sis and resolution of Mr. Parrish' s

15arg ument that, even if the USB had the authority to make a del eg ation to the C&P Direc tor to

conduct the radia

tion deter mination require d by 38 C.F.R. § 3.311(c) , he never did so. Mr. Parrish
arg ues that there is no evidence in the rec ord that a de leg ation memorandum de signa ting the C& P Direc tor was executed, as require d by VA policy

. See I I .B.3, ante. The majority states: "it is

... not surprising that a deleg ation memorandum is not in the rec ord on appea l

. . . and the simple fac t that such a memorandum is not in the rec ord fails to overc ome the presumption that g overnme nt officia ls
g ener ally discharg e their duties in acc ordanc e with the law and g overning reg ulations." Ante at 10. "T here is a presumption of reg ularity under which it is pre sumed that g overnme nt of ficials

' have properly discharg ed their officia l duties.' " Ashley v . Derwinski, 2 Vet.App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 47 S. Ct. 1 (1926))

. "H oweve r, ' [t ]he presumption of
reg ularity is not absolute; it may be rebutted by the submissi on of clea r evidenc e to the contra

ry .' " Jones ( Raymond) v. W

est, 12 Vet.App. 98, 100 (1998) (quoting Ashley, 2 Vet.App. at 309) (alter ation in orig inal). My problem with the majority ' s an al y s i s i s the leap the majority takes in apply ing the presumption of reg ularity to the deleg ation are a–an are a that is a bit more involved than simply perf orming a proce dural or minis t er i al ac t

. Significa ntly , in previous decisions, this Court has applied the presumption of reg ularity to issues primarily involving the delivery or receipt of ma il, which are proce dural and minist eria l a cts. I n March v . Nicholson, the Court rec ounted that it ha d applied the presumption of reg ularity to proce sses and proce dures throug hout the VA administrative proce ss. S ee , e. g ., Crain v. Principi, 17 Vet.App. 182, 186 (2003) (apply ing the presumption of re g ularity to RO's mailing of a Stateme nt of the C ase to a veter an); Redding v. W est, 13 Vet.App. 512, 515 (2000) (a p p l y i n g the presumption of reg

ularity as to whether RO rec eived the veter an' s power of attorney ); Baldwin v. W

est, 13 Vet.App. 1, 5-6 (1999) (apply ing the presumption of reg ularity
as to whether RO examined and considere d service medical rec ords); Schoolman v. W est, 12 Vet.App. 307, 310 (1999) (apply ing the presumption of reg ularity as to whether RO sent to claimant the application form for depende ncy and i n d em n ity compensa tion); Davis [ v. Brown ] , 7 Ve t.App. [298,] 300 [(1994)] (apply ing the presumption of reg ularity to the Board' s mailing of a copy of a B oard decision to a veter an); Mindenhall [ v. Brown ] , 7 Vet.App. [271,] 274 [(1994)] (apply ing the presumption of re g ularity to a RO' s mailing of a

VA dec ision to a vetera

n).

19 Vet.App. 381, 385 (2005). More rece ntly , th e Court has applied the presumption of reg ularity
to i ssues involving mailings or filings in Kyhn v. Shinseki, 24 Vet.App. 228 (2011); Fithian v.

16Shinski, 24 Vet.App. 146 (2010); Posey v. Shinseki, 23 Vet.App. 406 (2010); Irwin v. Shinseki, 23

Vet.App. 128 ( 2009); and Clarke v. Nicholson, 21 Vet.App. 130 ( 2007). Her e, the majority seeks to extend the presump t i o n of reg ularity in a manner that would require Mr. Parrish to (1 ) rea liz e that a document he did not know exis ted actua lly did exis t, (2)

sear ch files maintained by VA for t hat document, and (3) obtain the document. Moreove r, the document at issue here , a deleg ation of authority , is a document that VA would both initiate and have total control over cre ating , not Mr. Parrish. For the majority to imply that Mr. Parrish somehow fa i l ed t o produce a deleg ation document shifts the burden from the Secre tary , who is in the best position to produce evidenc e of the exis tence of a deleg ation, to the appellant–the person in the worst position t o produce such a de leg ation document. I n Johnson (

L.E.) v. Shinseki, 23 Vet.App. 344 (2010) , J u d g e Hag el wrote a concur ring opinion addre ssing a simil ar conundrum, wher e, in order to rebut the presumption of reg ularity , the
veter an neede d evidenc e that "r emain[ed] exclusively in VA' s control." 23 Vet.App. at 350 (Ha g el, J ., concur ring ). J udg e Ha g el wrote that this c rea ted "a n unduly onerous path for a veter an to r ebut the pre sumption of reg ularity ." Id. He c ontinued: "I n prac tice, re quiring a vete ran to na vigate the VA administrative sy stem to which he has no acc ess to find out whether [documents wer e transmitted in a reg ular manner acc ording to proce dure] would transfor m the rebuttable presumption of reg ularity into an essentially irrebuttable presumption." Id. J ust as J udg e Hag el was not willing
to extend the presumption of reg ularity in Johnson , I am not willing to extend the presumption of
reg ularity to such a point in this case. Alterna tively , in order to comply with the maj o ri t y 's s tance , Mr. Parrish could have (1)

rec og nized that a deleg ation of authority could have allowed the USB to comply with the statute and that a designa

tion was not contained in the record and (2) called thi s deficie ncy to the Court's and the Secre tary ' s attention in his initial brie f. The Secre tary could have then sear ched VA' s files and provided the delegat i o n m em o randum or responde d in his brief that a designa tion had been m ade from the USB to the C&P Direc tor in a for mat other than a

deleg ation memorandum. I n his initial brief, Mr. Parrish specific ally arg ued that "[n]othi ng in [§] 3.311 provides that the USB may deleg ate this responsibility to the C&P Direc tor" (Appe llant's Br ief at 7) and that "the Secre tary cites nothing in the rec ord indicating that the USB deleg ate d h i s re s ponsibili ty under

17section 3.311(c) to the C&P Direc to r i n t h i s case " (Appe llant's Reply Br ief at 4) (empha sis in orig inal). Yet the Secre tary , in his response , mere ly cited to 38 C.F.R. § 3.100 and stated that the USB "ha s the g ener al authority to desig nate supervisory personne l of [VA] to make finding s under applicable law and reg ulations," and that the C&P Direc tor repor ts direc tly to the USB. Secre tary ' s Br ief at 6. The Secre tary ' s brief would have been the appropr iate time to point the Court's and Mr. Parrish' s attention to the applicable provision of the M21-MR, which eff ectively desig nates the C&P Direc tor to exercise the authority deleg ated in § 3.100(a)

. I t would have also been appropr iate and in c ompliance with Rule 30 of the Court's Rules of Practice and Procedur e for the Secre tary to f ile a letter of suppl emental authority with the Court citing this per tinent and sig nificant a

uthority if it

wer e newly discovere d afte r his briefs wer e filed. (H o we v er , if VA' s proce dure truly has been so clea r cut and the deleg ation so long stand i n g, surely the Secre tary should have prese nted the
arg ument to the Court at the first possible opportunity , rathe r than the last.) Yet the Court notes that it was only at oral arg ument that the Secre tary arg ued that the M21-MR provision constitutes a deleg ation of the USB' s authority in a ccor dance with § 3.100(a)

. For the majority to conclude that Mr. Parrish should have obtained the document in order to rebut the presumption of authority –when the Secre tary could not be bothere d to provide it to the Court until oral arg ument–is truly placing an undue burde n on the appe llant.

18