Prinkey v. Shinseki , 735 F.3d 1375 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
ROBERT D. PRINKEY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7138
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-3277, Judge Lawrence B.
Hagel.
______________________
Decided: November 19, 2013
______________________
ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick,
Ltd., of Providence, Rhode Island, argued for claimant-
appellant. On the brief were THOMAS R. BENDER; and
CHRISTOPHER J. CLAY, Disabled American Veterans, of
Cold Springs, Kentucky. Of counsel was ROBERT VINCENT
CHISHOLM, Chisholm Chisholm & Kilpatrick, of Provi-
dence, Rhode Island.
MARTIN F. HOCKEY, JR., Assistant Director, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent-appellee. With him on the brief were STUART
2 PRINKEY v. SHINSEKI
F. DELERY, Principal Deputy Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MICHAEL S. MACKO,
Trial Attorney. Of counsel on the brief were DAVID J.
BARRANS, Deputy Assistant General Counsel and TRACEY
PARKER WARREN, Attorney, United States Department of
Veterans Affairs, of Washington, DC.
______________________
Before NEWMAN, CLEVENGER, and TARANTO, Circuit
Judges.
CLEVENGER, Circuit Judge.
Robert D. Prinkey appeals from the final decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the decision of the Board of
Veterans’ Appeals (“BVA”) sustaining the severance of
service connection for diabetes mellitus type II and relat-
ed disabilities and denying entitlement to a total disabil-
ity rating based on individual unemployability. Prinkey v.
Shinseki, No. 10-3277, 2012 WL 985754 (Vet. App. Mar.
23, 2012). For the reasons stated below, we hold that a
central contention he makes is outside our statutory
jurisdiction, and we otherwise affirm.
I
The law permits severance of service connection for
previously awarded disability benefits, i.e., reversing an
earlier finding that a particular disability was connected
to military service and cutting off benefits that had been
awarded based on that finding. In particular, 38 C.F.R.
§ 3.105(d) (2011) provides that “service connection will be
severed only where evidence establishes that it is clearly
and unmistakably erroneous (the burden of proof being
upon the [Veterans Administration]).”
The language of § 3.105(d) is written in the present
tense, asking not whether the original decision of service
connection was correct at the time it was made, but
PRINKEY v. SHINSEKI 3
whether the original decision “is clearly erroneous.” As
the Veterans Court has observed, in meeting its burden of
proof under § 3.105(d), the Veterans Administration
(“VA”) may consider medical evidence and diagnoses that
postdate the original award of service connection. See
Stallworth v. Nicholson, 20 Vet. App. 482, 488 (Vet. App.
2006). Where the VA demonstrates, based on all the
relevant evidence, that an original award of service con-
nection is clearly and unmistakably erroneous, service
connection may be severed. The severance of service
connection means that all previous benefits resulting from
the original service connection decision are terminated.
In order for error to be clear and unmistakable, it
must be outcome determinative, i.e., one whose avoidance
“would have manifestly changed the outcome” of a prior
decision. Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir.
2002) (en banc); see also Bustos v. West, 179 F.3d 1378,
1381 (Fed. Cir. 1999).
II
Mr. Prinkey served in the United States Army from
1969 to 1970, including time in Vietnam. He was diag-
nosed with diabetes in 1996. Certain diseases, including
diabetes mellitus type II, are presumed to be service
connected if the veteran was exposed to Agent Orange
during service. See 38 U.S.C. § 1116(a)(2)(H) (2002). On
April 14, 2003, the VA received Mr. Prinkey’s original
disability claim for benefits on account of his diabetes and
related conditions, asserting exposure to Agent Orange
and presumptive service connection. In June of 2003, the
VA provided Mr. Prinkey with a medical evaluation to
assist him in developing his claim. The medical examina-
tion concluded that Mr. Prinkey “has diabetes mellitus
which can be related to the Agent Orange exposure.” R.A.
28. Soon thereafter, on July 8, 2003, the VA Regional
Office (“RO”) in Huntington, West Virginia issued a rating
decision granting service connection to Mr. Prinkey for his
4 PRINKEY v. SHINSEKI
“diabetes mellitus claimed as secondary to agent orange
exposure” evaluated at 20%, as well as lesser rated ser-
vice connection for other disabilities secondary to the
service connected diabetes. R.A. 29.
Mr. Prinkey sought to reopen his claim on August 1,
2005. A further medical examination was performed on
January 5, 2006, at which time the medical examiner
observed that there was “no C-file [Mr. Prinkey’s full
claims file] to review.” R.A. 52. Following the January 5
medical examination, the RO in Cleveland, Ohio issued
another rating decision on February 24, 2006. That
rating decision retained Mr. Prinkey’s 20% rating for
diabetes but increased certain of his disabilities secondary
to the diabetes. The RO adjudicator deferred Mr.
Prinkey’s claim to entitlement for Individual Unemploya-
bility pending a medical opinion on that subject. The RO
ordered that Mr. Prinkey’s full claims file be sent to the
medical examiners (a nurse practitioner and an endocri-
nologist) who had performed the January 5 examination.
With regard to the issue of Mr. Prinkey’s employabil-
ity, on March 21, 2006, the nurse practitioner concluded,
apparently on the basis of her January 5, 2006, examina-
tion, that Mr. Prinkey’s employability was severely im-
paired by his diabetes. Thereafter the nurse practitioner
reviewed Mr. Prinkey’s full claims file and discovered
information that had not previously been available to
medical evaluators. The nurse practitioner’s subsequent
evaluation on April 18, 2006, stated:
Patient has a history of pancreatectomy which
more likely than not resulted in the pancreancre-
atic [sic] insufficiency and inadequate insulin se-
cretion which caused the patient’s diabetes. The
cause for his pancreatectomy may have been a
tumor, or per his C-file, a note 5/30/03 by Dr. D.
[S.]: “He has had a multitude of medical problems
especially since 1993 and had surgery to remove
PRINKEY v. SHINSEKI 5
most of his pancreas, gall bladder and stomach
because of what he was told was his history of
drinking despite his reported having quit in
1974.” The date of the pancreatectomy was ap-
proximately 1994 and patient reports diabetes di-
agnosed in 1996. C-file has varying dates from
1994, and 1995. Therefore, it is more likely than
not that the diabetes mellitus type II, on insulin
resulted from the pancreatectomy.
R.A. 54.
The nurse practitioner concluded that Mr. Prinkey’s
diabetes more likely than not resulted from the surgery
that removed most of his pancreas, not from his exposure
to Agent Orange. Her evaluation was further reviewed
the same day by the endocrinologist, whose evaluation, as
contained in an addendum to the nurse practitioner’s
report, stated:
Review of records indicate [sic] that the veteran
does not have DM2 [diabetes mellitus type II].
The veteran has diabetes secondary to pancreatec-
tomy for chronic alcohol abuse. He has minimal
beta cell function, as indicated by his C-Peptide
level of 0.7, barely detectable. It is as likely as not
that his remaining pancreatic function will con-
tinue to decrease with time, leaving him entirely
insulin dependent. His pancreatic failure and
pancreatic resection have nothing to do with
Agent Orange exposure.
R.A. 53.
Whereas the nurse practitioner’s evaluation was that
Mr. Prinkey’s diabetes was more likely than not caused by
the removal of most of his pancreas, not his exposure to
Agent Orange, the endocrinologist’s opinion left no room
for doubt: his diabetes resulted from his pancreatectomy
6 PRINKEY v. SHINSEKI
for chronic alcohol abuse and had no association with his
possible exposure to Agent Orange.
On the basis of the April 18, 2006, evaluations, the
Cleveland RO entered a further rating decision, dated
July 17, 2006, and conveyed by letter dated July 20, 2006,
to Mr. Prinkey. The letter stated that “[w]e have re-
viewed medical records concerning your service-connected
condition(s) and noted new evidence reference [sic] the
origins of your diabetes mellitus type 2 (DMII). We
propose to sever your service connection.” R.A. 56. The
rating decision explained that the adjudicator had re-
viewed Mr. Prinkey’s medical records, which showed his
pancreatectomy in 1994 and his diagnosis of diabetes in
1996. The rating decision accepted the opinion of the
endocrinologist that his pancreatectomy was secondary to
his history of alcohol abuse, and had noted Mr. Prinkey’s
minimal beta cell function. The rating decision accepted
the endocrinologist’s opinion that Mr. Prinkey’s pancreat-
ic failure and resection had nothing to do with his possible
Agent Orange exposure. The rating decision thus re-
moved service connection as the explanation for Mr.
Prinkey’s diabetes, his diabetes-related injuries and his
claim to individual unemployability due to his diabetes
and related injuries.
The July 17 letter afforded Mr. Prinkey sixty days in
which to respond with new relevant evidence. When he
did not respond in the stated time, the Cleveland RO
informed Mr. Prinkey by letter on September 29, 2006,
that it was acting on the rating decision of proposed
severance of service connection for diabetes and related
injuries “because our records show that your diabetes
mellitus was not caused by exposure to agent orange.”
R.A. 64. Consequently, all of Mr. Prinkey’s ratings de-
pendent on diabetes resulting from exposure to Agent
Orange were severed effective December 1, 2006. Mr.
Prinkey timely filed a Notice of Disagreement (“NoD”)
with the rating decision severing his service connections,
PRINKEY v. SHINSEKI 7
thus indicating his desire to appeal the adverse rating to
the BVA.
The Cleveland RO prepared a Statement of the Case
(“SoC”), a document that explains in detail the basis and
rationale for the adverse rating decision. The SoC ex-
plained that service connection:
can be severed only on the basis of clear and un-
mistakable error. In this case it was determined
that there was clear and unmistakable evidence
that the veteran’s diabetes was not due to the pre-
sumption of relationship to herbicides but was due
to residuals of a pancreatectomy. Evidence of the
pancreatectomy is noted throughout the evidence
of record. The most recent VA examination con-
tained a C-peptide test result that the veteran
was insulin deficient and not insulin resistant as
would be the case with type II diabetes. Since the
veteran’s diabetes is not truly type II and is found
secondary to a pancreatectomy long after service,
severance of service connection was proper.
R.A. 80–81.
Mr. Prinkey’s NoD was followed by his appeal to the
BVA. A hearing was held at his request on July 21, 2008,
and the BVA issued its decision on January 26, 2009.
During the July hearing, Mr. Prinkey mentioned his
previous pancreatic surgery and current medical treat-
ment he was receiving for his diabetes. Because of the
possibility of additional relevant records, the BVA re-
manded Mr. Prinkey’s case for further development.
Following remand additional medical records were re-
ceived. The additional records included outpatient treat-
ment records from various VA medical centers covering
the periods from March 7, 2002, to January 20, 2010,
treatment reports by Dr. [D. D.], and a CT report from Dr.
[R. R.] dated May 1, 2001. Following receipt and analysis
of the additional records by the Appeals Management
8 PRINKEY v. SHINSEKI
Center, a supplemental SoC was prepared. The supple-
mental SoC recited the requirements for severance of
service connection set forth in § 3.105(d), and concluded
that severance of Mr. Prinkey’s service connection for
diabetes and related injuries was grounded in clear and
unmistakable error in the original rating of service con-
nection. The supplemental SoC reasoned that the availa-
ble evidence showed the onset of Mr. Prinkey’s diabetes
occurred in 1996, while the development of his initial
pancreatic disorder occurred at least two years before in
1994. Further, the other evidence showed that his pan-
creatic disorder resulted from his history of alcohol abuse
and “had no relationship to your military service to in-
clude [his] exposure to herbicide of Agent Orange.”
R.A. 104.
The supplemental SoC signaled the completion of the
remand, and Mr. Prinkey’s appeal was returned to the
BVA, with the issue framed as whether under § 3.105(d)
the evidence establishes that Mr. Prinkey’s July 8, 2003,
rating of service connection for “diabetes mellitus claimed
as secondary to agent orange exposure,” R.A. 29, is clearly
and unmistakably erroneous.
III
The BVA decision dated August 4, 2010, first recited
the procedural rights afforded to a veteran for whom the
VA proposes to sever an award of service connection and
concluded that those rights had been satisfied in this
case.
The BVA focused its analysis of the facts on the two
relevant rating decisions: the July 8, 2003, rating decision
of service connection, which was based on the June 2003
medical evaluation, and the September 29, 2006, rating
decision severing service connection, which was based on
the April 18, 2006, medical evaluations.
PRINKEY v. SHINSEKI 9
With regard to the 2006 medical evaluations, the BVA
concluded that the endocrinologist was unequivocal in her
assessment that Mr. Prinkey’s diabetes was caused by his
pancreatectomy and that his pancreatic failure had
nothing to do with exposure to Agent Orange, stating that
“there could not be a more definite statement than she
made in the addendum that she authored.” R.A. 121. The
BVA found that the endocrinologist provided clinical
findings to support her statement of etiology, referring to
Mr. Prinkey’s minimal beta cell function. The endocrinol-
ogist had also acknowledged the nurse practitioner’s
report which referred to the dates of onset of diabetes and
the previous pancreatic surgery, and connected Mr.
Prinkey’s inadequate insulin secretion to pancreatic
insufficiency following the surgery. The BVA specifically
found that the evidence showed a diagnosis of diabetes
two years after the pancreatic surgery and thus that there
were no deficiencies in the factual foundation referred to
by the nurse practitioner and acknowledged by the endo-
crinologist. The BVA further found that the endocrinolo-
gist was “a pertinent specialist of the highest level of
expertise as to this issue.” R.A. 121.
With regard to the medical evaluation upon which
service connection was granted in 2003, the BVA conclud-
ed as follows:
The examination reports upon which the RO re-
lied in granting service connection were unin-
formed as to the resection of the Veteran’s
pancreas. The June 2003 examination report did
not reference a resection of the pancreas or alcohol
induced disease of the pancreas and the examiner
did not have the claims file before him. The ex-
amination was inadequate because the examiners
[sic] did not have sufficient facts before him to
render a correct statement of etiology. All later
statements that may have referred to diabetes as
due to Agent Orange exposure are devoid of ex-
10 PRINKEY v. SHINSEKI
planation and depend entirely on what the June
2003 examiner incorrectly determined and the RO
endorsed by its label of his diabetes as due to
Agent Orange exposure. Indeed, it was not until
medical professionals, the nurse practitioner and
the endocrinologist, reviewed the claims file that
anyone who offered medical examination results
were aware of the pancreas resection. The only
valid opinion in this case is that of the endocrinol-
ogist as stated in the April 2006 addendum.
R.A. 122.
Based on the foregoing analysis of the record, the
BVA held that the VA had shown clear and unmistakable
error in the 2003 decision of service connection for diabe-
tes mellitus and denied Mr. Prinkey’s appeal. Mr.
Prinkey then timely appealed the BVA decision to the
Veterans Court.
IV
Before the Veterans Court, Mr. Prinkey challenged
the BVA’s decision on two grounds. First, Mr. Prinkey
argued that the BVA “failed to observe applicable law
concerning the standards for severance of service connec-
tion based on clear and unmistakable error.” Prinkey,
2012 WL 985754, at *3. The gist of Mr. Prinkey’s argu-
ment on this point was that the BVA had erred by “weigh-
ing the evidence” when considering whether the VA had
shown clear and unmistakable error under § 3.105(d) in
the 2003 rating decision. As the Veterans Court’s opinion
explains, the issue before the BVA was not weighing the
2003 rating decision against the 2006 severance decision.
Id. at *4. The BVA had found, and the Veterans Court
agreed, that the 2003 medical opinion relied on by the
rating decision was inadequate, and thus not reliable,
because the examiner was not sufficiently informed. Id.
The Veterans Court held that the BVA had correctly
applied § 3.105(d) without weighing of the evidence. Id.
PRINKEY v. SHINSEKI 11
Mr. Prinkey’s second ground of challenge concerned
the adequacy of the medical opinion by the endocrinolo-
gist upon which the 2006 severance decision was based.
Mr. Prinkey argued that the endocrinologist had insuffi-
cient rationale to support her conclusion that his diabetes
is attributable to his pancreatic surgery and not to expo-
sure to Agent Orange. In addition, Mr. Prinkey argued
that the endocrinologist opined on an incomplete record
because she did not have before her the CT radiology
report from May 2001. Id. This 2001 report did not
become part of Mr. Prinkey’s C-file until January 2009,
after remand and before final adjudication by the BVA.
Id. Because the BVA had found the April 2006 medical
opinion adequate, the Veterans Court took Mr. Prinkey’s
argument as a challenge to the Board’s finding of fact. Id.
at *4. The Veterans Court held that the BVA had not
committed clear error because an August 2002 record in
the file at the time of the 2006 medical evaluations in-
formed the endocrinologist that Mr. Prinkey had had
surgery to remove most of his pancreas—information that
duplicated the information in the 2001 CT scan. Id. Any
possible error in not having the 2001 CT scan before the
April 2006 medical examiners was thus harmless. Id. In
addition, the Veterans Court rejected Mr. Prinkey’s
argument that the 2006 medical opinions lacked sufficient
rationale. Id.
Rejecting both of Mr. Prinkey’s challenges to the
BVA’s decision affirming the severance of service connec-
tion under § 3.105(d), the Veterans Court affirmed, and
Mr. Prinkey timely appealed to this court.
V
Regarding appeals from the Veterans Court, we have
exclusive jurisdiction to interpret constitutional and
statutory provisions and to review and decide any chal-
lenge to the validity of any statute or regulation or any
interpretation thereof by the Veterans Court. 38 U.S.C.
12 PRINKEY v. SHINSEKI
§ 7292(a),(c). However, except to the extent that an
appeal presents a constitutional issue, we are barred from
judicial review of “(A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
As this court explained in Forshey v. Principi, 284
F.3d 1335, 1345 (Fed. Cir. 2002) (en banc), before the
enactment of § 7292 in 1988, there was virtually no
judicial review of decisions by the VA. After extensive
debate about the kind of judicial review that should be
afforded to veterans, Congress settled on creation of the
Veterans Court and on limited review by this court of
decisions of the Veterans Court. The Veterans Court, an
Article I tribunal, presides over the BVA, and has author-
ity to decide legal issues and factual disputes under a
clear error standard of review. 38 U.S.C. § 7261(a). But
except for constitutional issues, the language and legisla-
tive history of the 1988 statute (creating the Veterans
Court and vesting our court with appellate jurisdiction)
make clear beyond any possible doubt that this court has
no power to resolve any factual dispute in a case decided
by the Veterans Court. See Forshey, 284 F.3d at 1344–47.
VI
In the light of our jurisdictional authority over deci-
sions of the Veterans Court, we turn to Mr. Prinkey’s
appeal to this court. His principal ground for appeal is a
direct challenge to the sufficiency of the April 2006 medi-
cal evaluations that led to the severance of his service
connection. Appellant Br. 25–34, 49–61. He frames the
sufficiency of a medical opinion as a legal issue, and
argues that we thus have jurisdiction to assess the April
2006 medical evaluation independently and to conclude
that it is insufficient as a matter of law to show that the
2003 service connection rating is clearly and unmistaka-
bly erroneous. Id. at 39–43. As for relief, Mr. Prinkey
PRINKEY v. SHINSEKI 13
asks this court to remand the case with instructions to
reinstate his service connection. Id. at 61.
Mr. Prinkey argues that the endocrinologist’s “74
word addendum” medical opinion is insufficient because it
lacks a full explanation of the basis for the rejection of the
2003 rating decision. Id. at 49. The VA disagrees, point-
ing to the analysis of the BVA and the Veterans Court of
the same addendum finding it to be sufficient. Appellee
Br. 39–41. This is the factual dispute Mr. Prinkey asks
this court to decide. The VA argues that such a dispute is
beyond our jurisdiction, id. at 15–24, and, for the reasons
that follow, we agree.
We have previously addressed the issue of our juris-
diction to review the facts underlying the assessment of
clear and unmistakable error by the Veterans Court. In
Belcher v. West, 214 F.3d 1335 (Fed. Cir. 2000), modified
on other grounds, Forshey v. Principi, 284 F.3d 1335, 1359
(Fed. Cir. 2002) (en banc), the question was whether Mr.
Belcher was entitled to the presumption of soundness
upon his entry into the Navy. See 38 U.S.C. § 1111(“[E]very veteran shall be taken to have been in sound
condition when examined, accepted, and enrolled for
service, except as to defects, infirmities, or disorders noted
at the time of the examination, acceptance, and enroll-
ment, or where clear and unmistakable evidence demon-
strates that the injury or disease existed before
acceptance and enrollment.”). The VA argued that evi-
dence of Mr. Belcher’s psychiatric condition pre-existing
his enrollment was clear and unmistakable to rebut the
presumption of soundness. The Veterans Court agreed,
and held as a matter of fact that “the evidence in this case
is sufficient to rebut the presumption of soundness clearly
and unmistakably.” Belcher v. West, 16 Vet. App. 465(Vet. App. 1999). On appeal to this court, Mr. Belcher
asked us to review whether the evidence regarding Mr.
Belcher’s pre-existing condition rises to the level of clear
and unmistakable evidence. Belcher, 214 F.3d at 1337–
14 PRINKEY v. SHINSEKI
38. As in the case now before us, in Belcher we were
asked to judge the adequacy of the evidence as clear and
unmistakable. We held that we lacked jurisdiction to
review the question presented. Id.After Belcher, we have been asked on several occa-
sions to exercise our jurisdiction to judge the sufficiency of
a medical opinion. In each instance, by short opinions in
non-precedential format, we have dismissed the appeals
for want of jurisdiction on the ground that whether a
medical opinion is adequate is a question of fact. See
Escobar v. Shinseki, No. 2012-7097, 2013 WL 3481718, at
*3 (Fed. Cir. 2013) (“[W]hether a medical opinion is
‘adequate’ is squarely a question of fact.”); Washington v.
Shinseki, 452 F. App’x 983, 985 (Fed. Cir. 2011) (“The
adequacy of a medical opinion is a question of fact.”);
Pathak v. Shinseki, 412 F. App’x 301, 303–04 (Fed. Cir.
2011) (holding that adequacy of medical opinion is a
question of fact); Elliott v. Shinseki, 415 F. App’x 251, 252
(Fed. Cir. 2011) (citing DeRamos v. Shinseki, 358 F. App’x
167 (Fed. Cir. 2009) and Cole v. Shinseki, 309 F. App’x
399 (Fed. Cir. 2009) for the proposition that adequacy of a
medical opinion is an unreviewable finding of fact); Ray-
burn v. Peake, 306 F. App’x 580, 582 (Fed. Cir. 2009)
(same); Lechliter v. Peake, 282 F. App’x 815, 820 (Fed. Cir.
2008) (same).
In each of these several cases, we correctly deter-
mined that the sufficiency of a medical opinion is a matter
beyond our jurisdictional reach, because the underlying
question is one of fact. And the Veterans Court treats the
issue the same way: “[w]hether a medical opinion is
adequate is a finding of fact which this court reviews
under the ‘clearly erroneous’ standard of review.” D’Aries
v. Peake, 22 Vet. App. 97, 104 (Vet. App. 2008).
Indeed, the result Mr. Prinkey seeks—for this court to
independently judge the adequacy of medical opinions
rendered in the VA and to order the VA to act on the
PRINKEY v. SHINSEKI 15
decisions in which we would reverse the assessment of
medical opinions made by the Veterans Court—would
simply turn the jurisdictional order set by Congress in
1988 on its head. Instead of the Veterans Court acting as
the sole appellate judge of medical evidence (except where
a constitutional issue is before this court) while deferring
to the BVA’s assessment of facts under the clear error
standard, Mr. Prinkey would override the authority of the
Veterans Court by lodging independent review of medical
opinions in this court. This is precisely what Congress
forbade. 38 U.S.C. § 7292(d)(2). On Mr. Prinkey’s princi-
pal ground, we hold that the adequacy of a medical opin-
ion is a matter beyond our appellate jurisdiction. We
must accept as correct the judgment by the Veterans
Court that the 2006 medical examination is sufficient.
VII
Mr. Prinkey raises two other issues that warrant
mention. First, he argues that the Veterans Court mis-
construed § 3.105(d). But he has not identified an er-
ror. The Veterans Court did not say that an inadequate
medical opinion can suffice under the regulation to estab-
lish that a prior diagnosis is clearly and unmistakably
erroneous. Rather, it agreed with the BVA as a matter of
fact that the 2006 medical examination was sufficient
whereas the 2003 medical examination was not. Prinkey,
2012 WL 985754, at *4–5. Moreover, neither the Board
nor the Veterans Court relied exclusively on the April
2006 medical opinions. They considered all of the evi-
dence on record, and nothing in § 3.105(d) precludes
severance on such a basis.
Second, Mr. Prinkey argues that his constitutional
rights were violated, but that argument is meritless. The
BVA, in adjudicating his claim, gave him all the process
that is constitutionally required. It afforded him repeated
opportunities to challenge the April 2006 medical opinions
as deficient, in evidentiary foundation or in explanation,
16 PRINKEY v. SHINSEKI
and to submit his own contrary evidence. And the BVA
scrutinized the medical opinions, along with other evi-
dence, to ensure that it was untainted by the absence of
material information, and the BVA evaluated the weight
of the opinion after that scrutiny. Whatever due process
requires, it requires no more than that.
VIII
The central issue Mr. Prinkey presents is beyond our
statutory jurisdiction. His other challenges, while within
our jurisdiction, lack merit.
AFFIRMED
COSTS
Each side shall bear its own costs.