Gay v. McDonough ( 2021 )

Case: 21-1226 Document: 45 Page: 1 Filed: 10/25/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHIRLEY GAY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1226
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-2089, Senior Judge Robert N.
Davis, Judge Joseph L. Falvey, Jr., Judge William S.
Greenberg.
______________________
Decided: October 25, 2021
______________________
ROBERT C. BROWN, JR., Tommy Klepper & Associates,
PLLC, Norman, OK, argued for claimant-appellant.
BORISLAV KUSHNIR, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
ELIZABETH MARIE HOSFORD; JULIE HONAN, Y. KEN LEE,
Case: 21-1226 Document: 45 Page: 2 Filed: 10/25/2021
2 GAY v. MCDONOUGH
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before TARANTO, CLEVENGER, and CHEN, Circuit Judges.
TARANTO, Circuit Judge.
After completing two periods of service in the Navy, Al-
vin G. Gay sought benefits from the Department of Veter-
ans Affairs (VA) for an ear condition and hearing loss. Mr.
Gay pursued his claim until his death in 2011, at which
point his surviving spouse, Shirley Gay, was substituted as
claimant. The relevant VA regional office (RO) most re-
cently denied the requested benefits in 2018, and the Board
of Veterans’ Appeals affirmed that denial in 2019. When
Mrs. Gay appealed the Board’s decision to the Court of Ap-
peals for Veterans Claims (Veterans Court), that court af-
firmed the Board’s denial in a single-judge disposition. Gay
v. Wilkie, No. 19-2089, 2020 WL 3088864 (Vet. App. June
11, 2020). Mrs. Gay moved for reconsideration or, in the
alternative, for a three-judge panel decision, contending
that a recent Supreme Court decision not involving veter-
ans benefits, Department of Homeland Security v. Regents
of the University of California, 140 S. Ct. 1891 (2020) (Re-
gents), required reassessment of a legal principle applied
by the Veterans Court in its single-judge disposition. The
Veterans Court denied reconsideration but made the sin-
gle-judge decision a three-judge panel decision of the court.
Mrs. Gay now appeals to us. Our jurisdiction is limited
to the legal question presented and does not extend to any
fact issue in this matter. See 38 U.S.C. § 7292. We affirm.
I
Mr. Gay first joined the Navy during World War II, in
March 1945. During this first period of service, Mr. Gay
was diagnosed with acute “catarrhal fever”—a then-used
term for a group of respiratory tract diseases that includes
Case: 21-1226 Document: 45 Page: 3 Filed: 10/25/2021
GAY v. MCDONOUGH 3
the common cold, influenza, and lobular and lobar pneumo-
nia—and deemed to have “[u]sual symptoms” and to re-
quire “[r]outine treatment.” J.A. 27; J.A. 51; Gay, 2020 WL
3088864, at *3 n.38 (quoting STEDMAN’S MED. DICTIONARY
659 (27th ed. 2000)). Mr. Gay was honorably discharged in
August 1946, and, after his discharge, he was treated for a
right ear condition in 1949, potentially due to a fungal in-
fection and/or scarlet fever. J.A. 53–54; J.A. 56–57 (also
stating that Mr. Gay reported that his “[r]ight ear has been
draining off and on all his life”).
Mr. Gay rejoined the Navy in November 1950 and
served during the Korean War. At the time he sought to
reenlist, Mr. Gay underwent a reentry examination that
revealed a small perforation in the right tympanic mem-
brane, as well as evidence of chronic otitis media, but the
Navy granted him a waiver that allowed him to engage in
active service. J.A. 23–25; J.A. 55. During this second pe-
riod of service, Mr. Gay was treated for otitis in both ears.
J.A. 58. He was honorably discharged in June 1952.
A few months later, in October 1952, Mr. Gay filed his
first claim based on an allegedly service-connected right
ear condition, which he stated began in 1949 and was ag-
gravated during his 1950–52 service. J.A. 59–67. The rel-
evant RO denied the claim. It found that, although Mr.
Gay may have experienced an acute flare-up of his pre-
1950 ear condition during his 1950–52 service, there was
no aggravation of the condition noted at his 1952 discharge.
J.A. 68–70; J.A. 70 (“It is not considered that veteran’s dis-
ability of otitis media was incurred in or aggravated by ser-
vice and service connection is not considered warranted.”).
In the ensuing decades, Mr. Gay’s ear troubles contin-
ued. In 1965, he had a mastoidectomy to remove a cho-
lesteatoma in his right ear. J.A. 259; J.A. 279. By 1989,
he was diagnosed with moderate-to-severe sensorineural
hearing loss in his right ear and moderate high-frequency
Case: 21-1226 Document: 45 Page: 4 Filed: 10/25/2021
4 GAY v. MCDONOUGH
sensorineural hearing loss in his left ear. J.A. 237; J.A.
294; see also J.A. 93–96.
In 1996, Mr. Gay asked VA to reopen his claim for dis-
ability compensation, stating that his disability was caused
by right ear fungus beginning in 1945, but VA declined to
reopen. J.A. 71–74; J.A. 76–77. VA denied two similar re-
quests the next year. J.A. 78–81. In 2008, Mr. Gay filed a
new claim for bilateral hearing loss, chronic otitis media,
and tinnitus, citing exposure to loud noise as a service-re-
lated cause, which the RO again denied. J.A. 82–88. Mr.
Gay filed several requests for reconsideration, as well as a
notice of disagreement, before passing away on June 19,
2011. J.A. 92–115.
In 2012, VA formally substituted Mr. Gay’s widow,
Shirley Gay, as the claimant. J.A. 189–92. Mrs. Gay con-
tinued to pursue the claim, and in 2013 she and two daugh-
ters testified before the Board to the effect that an
unknown VA physician informed the family in 2009 or 2010
that Mr. Gay contracted a South Seas fungus in his right
ear during his first period of service. J.A. 198–219. The
Board then obtained an additional medical opinion, but
based on that opinion, the Board denied Mrs. Gay’s claims.
J.A. 220–27; J.A. 229–45. 1
Mrs. Gay appealed. In August 2016, the Veterans
Court, identifying multiple errors related to the Board’s
treatment of the South Seas fungus testimony, remanded
back to the Board. Gay v. McDonald, No. 15-0638, 2016
WL 4438111, at *1–2 (Vet. App. Aug. 23, 2016). In July
2017, the Board in turn remanded to the RO, J.A. 251–58,
requiring the RO to obtain a new medical opinion address-
ing, among other things, the question: “if [Mr. Gay’s] right
1 By that point, Mrs. Gay had withdrawn the claim
for disability benefits for service-connected tinnitus. J.A.
233.
Case: 21-1226 Document: 45 Page: 5 Filed: 10/25/2021
GAY v. MCDONOUGH 5
ear hearing loss was due to chronic right otitis media, was
[his] right otitis due to an infection contracted during the
first period of service [1945–46]?” J.A. 257. The RO ob-
tained the required medical opinion but again denied the
claim, determining that Mr. Gay’s chronic right otitis me-
dia and hearing loss were likely caused by a preexisting
cholesteatoma (rather than the reverse) and that the cho-
lesteatoma was not aggravated during service. J.A. 271–
273; J.A. 278–80. The Board affirmed. J.A. 291–300.
Mrs. Gay appealed to the Veterans Court, arguing that
(1) the Board had not complied with the August 2016 Vet-
erans Court and the July 2017 Board remand orders and
(2) the Board’s decision was arbitrary and capricious for
failing to address whether Mr. Gay’s documented case of
catarrhal fever during his 1945–46 service could have con-
tributed to his ear condition. Gay, 2020 WL 3088864, at
*1, *3. The Veterans Court, in a single-judge disposition,
rejected both arguments. First, the Veterans Court deter-
mined that the Board had substantially complied with the
remand orders. Id. at *1–3. Second, and what is now at
issue in the present appeal, the Veterans Court determined
that the Board was not required to address whether ca-
tarrhal fever caused Mr. Gay’s ear condition. Id. at *3–4.
In determining that the Board was not required to in-
vestigate the catarrhal-fever-causation issue, which Mrs.
Gay had not raised to the Board, the Veterans Court relied
on Robinson v. Peake, 21 Vet. App. 545 (2008) (Robinson I),
and this court’s affirmance of that decision in Robinson v.
Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Robinson II). In
Robinson I, a veteran receiving disability compensation for
a peptic ulcer sought benefits for heart disease and a hy-
perthyroid condition as allegedly secondary to the ulcer.
21 Vet. App. at 548. When the Board denied the claims,
Robinson appealed to the Veterans Court, arguing that the
Board also had an obligation to consider whether his heart
disease and hyperthyroid conditions were directly con-
nected to his service (i.e., not just eligible as secondary
Case: 21-1226 Document: 45 Page: 6 Filed: 10/25/2021
6 GAY v. MCDONOUGH
claims to his peptic ulcer). Id. The Veterans Court deter-
mined that the Board was not required to address this ar-
gument, reasoning that (a) “the Board is required to
consider all issues raised either by the claimant . . . or by
the evidence of record” but (b) the Board is not required “to
assume the impossible task of inventing and rejecting
every conceivable argument.” Id. at 552–53 (citations omit-
ted). We affirmed, stating that (a) “the VA is obligated to
determine all potential claims raised by the evidence”
where the claimant has asserted service connection of an
allegedly disabling condition but (b) “[w]here a fully devel-
oped record is presented to the Board with no evidentiary
support for a particular theory of recovery, there is no rea-
son for the Board to address or consider such a theory.”
Robinson II, 557 F.3d at 1361 (citations omitted); see also
id. (“[C]laims which have no support in the record need not
be considered by the Board.”). The determination of
whether the record raises an issue, we added, is a determi-
nation of “a factual matter” that is “beyond our jurisdiction
to review.” Id. at 1362.
In this case, the Veterans Court, applying the Robinson
standard, 2 determined that “[w]hile the evidence suggests
that Mr. Gay suffered from catarrhal fever . . . [n]either
Mrs. Gay’s arguments, nor the record, demonstrated a re-
lationship between Mr. Gay’s fever and his ear condition.”
Gay, 2020 WL 3088864, at *4. On that basis, the Veterans
Court held that “the Board did not err in failing to investi-
gate this theory that was not appropriately raised.” Id.Mrs. Gay moved for reconsideration or, in the alterna-
tive, for a three-judge panel decision, contending that the
Supreme Court’s decision in Regents—handed down a week
after the single-judge Veterans Court disposition—
2 Mrs. Gay has not identified a material substantive
difference between the formulations set forth in Robinson
I and Robinson II, so we refer to the Robinson “standard.”
Case: 21-1226 Document: 45 Page: 7 Filed: 10/25/2021
GAY v. MCDONOUGH 7
justified reconsideration of whether the Board was re-
quired to consider the catarrhal-fever issue. Motion for Re-
consideration, or in the Alternative, for a Panel Decision,
Gay v. Wilkie, No. 19-2089 (Vet. App. June 21, 2020). The
Veterans Court denied the motion for single-judge recon-
sideration and granted the motion for a panel decision but
ordered that the single-judge decision remain the decision
of the court. J.A. 9–10. Accordingly, the Veterans Court
entered judgment against Mrs. Gay on October 7, 2020.
J.A. 1. Mrs. Gay timely appealed.
II
A
Mrs. Gay argues that the Veterans Court erred in ad-
hering to the Robinson standard after the recent Supreme
Court decision in Regents. Under 38 U.S.C. § 7292(a), this
court has jurisdiction to address Mrs. Gay’s contention that
Regents requires a departure from the Robinson standard,
a contention that presents a question of law. Moreover, en
banc review is not needed for us to address that question:
A panel may depart from a previous panel’s decision if the
departure is required by an intervening Supreme Court de-
cision. See Deckers Corp. v. United States, 752 F.3d 949,
964 (Fed. Cir. 2014); Doe v. United States, 372 F.3d 1347,
1354–55 (Fed. Cir. 2004); Tex. Am. Oil Corp. v. U.S. Dep’t
of Energy, 44 F.3d 1557, 1561 (Fed. Cir. 1995) (en banc).
We decide the legal issue de novo. Bazalo v. West, 150 F.3d
1380, 1382 (Fed. Cir. 1998); Prenzler v. Derwinski, 928
F.2d 392, 393 (Fed. Cir. 1991).
In Regents, the Supreme Court reviewed the Depart-
ment of Homeland Security’s (DHS) decision to end the De-
ferred Action for Childhood Arrivals immigration program
(DACA)—which involved both a grant of certain work and
other benefits to covered persons and a decision to forbear
from instituting removal proceedings under the immigra-
tion laws. 140 S. Ct. at 1901. DHS made the termination
decision based on a letter from the Attorney General
Case: 21-1226 Document: 45 Page: 8 Filed: 10/25/2021
8 GAY v. MCDONOUGH
stating that the benefits portion of DACA was likely un-
lawful. Id. at 1903. The Supreme Court, while rejecting
several other challenges to the termination decision, held
that DHS’s decision was “arbitrary and capricious” in vio-
lation of the Administrative Procedure Act (APA), 5 U.S.C.
§ 706(2)(A). Id. at 1913–15. The Court so ruled because
DHS failed to consider “important aspect[s] of the prob-
lem,” namely: (1) DHS failed to recognize that DACA in-
volved two distinct policies (benefits and forbearance), only
one of which had been deemed unlawful, so DHS erred in
not considering the feasibility of retaining one (forbear-
ance) while terminating the other (benefits); and (2) DHS
failed to address the reliance interests of DACA beneficiar-
ies, interests that DHS had to consider in reversing the
prior policy because it was not “writing on a blank slate.”
Id. at 1910–15 (quoting Motor Vehicle Mfrs. Ass’n of the
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)).
Those holdings do not support a departure from the
Robinson standard. First, the “important aspect of the
problem” principle, taken by Regents directly from State
Farm, is old and predates the Robinson cases. See State
Farm, 463 U.S. at 43. Second, Regents applied the State
Farm principle to a specific context quite different from the
context (exemplified here) to which the Robinson standard
applies. Whereas Robinson (like this case) involved a
claim-specific adjudication, Regents involved a change of a
prior general agency policy—and, specifically, a misunder-
standing of the nature of the policy being changed and a
failure to consider the reliance interests on that policy. 3
3 See State v. Biden, 10 F.4th 538, 553–55 (5th Cir.
2021) (discussing Regents in policy-change context); Medi-
Natura, Inc. v. FDA, 998 F.3d 931, 941–43 (D.C. Cir. 2021)
(same); Nat’l Urban League v. Ross, 977 F.3d 770, 778 (9th
Cir. 2020) (same).
Case: 21-1226 Document: 45 Page: 9 Filed: 10/25/2021
GAY v. MCDONOUGH 9
Third, and in any event, nothing in Regents requires an
agency adjudicating a claimant’s assertion of entitlement
to benefits to do more than Robinson requires, which is to
address any theory of relief raised either by the claimant
or by the evidence. Regents does not imply that the Board,
if it fulfills that Robinson duty, has failed to address “im-
portant aspect[s] of the problem.” Regents, 140 S. Ct. at
1910 (quoting State Farm, 463 U.S. at 43). Indeed, in its
own context, Regents notes that the duty to consider issues
has limits, stating that agencies are “not required . . . ‘to
consider all policy alternatives in reaching . . . decision[s].’”
Id. at 1914–15 (quoting State Farm, 463 U.S. at 51).
For the foregoing reasons, we conclude that Regents
does not require us to depart from the Robinson standard—
even apart from the fact that judicial review here does not
take place under the APA, which governed in Regents. We
need not and do not rely on that fact here. Regents is an
application of the APA’s “arbitrary, capricious” standard of
review, 5 U.S.C. § 706(2)(A), and this case is governed by
38 U.S.C. § 7261(a)(3)(A), which uses the same “arbitrary,
capricious” language. Not surprisingly, we have used APA
jurisprudence in applying the Title 38 provision. See
Euzebio v. McDonough, 989 F.3d 1305, 1322–23 (Fed. Cir.
2021) (“The Veterans Court must also review Board and
VA determinations for ‘abuse of discretion’ and ‘arbitrary
[and] capricious’ decision making, including whether the
Board or VA[] entirely failed to consider an important as-
pect of the problem . . . .” (quoting 38 U.S.C. § 7261(a)(3)(A)
and State Farm, 463 U.S. at 43)); see also Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 432 n.2 (2011) (“[T]he
Veterans Court’s scope of review, § 7261, is similar to that
of an Article III court reviewing agency action under the
[APA] . . . .”). Whether an agency has failed to address an
important aspect of a problem, and is arbitrary and capri-
cious for that reason, can turn on the specific statutes and
regulations that govern the agency, see Oregon Natural Re-
sources Council v. Thomas, 92 F.3d 792, 798 (9th Cir.
Case: 21-1226 Document: 45 Page: 10 Filed: 10/25/2021
10 GAY v. MCDONOUGH
1996), but that does not distinguish 38 U.S.C. § 7261 from
5 U.S.C. § 706. Regardless, we see no basis for concluding
that Regents unsettles the Robinson standard. We there-
fore must reject Mrs. Gay’s principal argument here.
B
Mrs. Gay contends that (1) even under the Robinson
standard, the record did in fact provide sufficient evidence
to trigger the Board’s duty to address the catarrhal-fever
issue and (2) the August 2016 Veterans Court and the July
2017 Board remand orders were not substantially complied
with. See Appellant’s Br. 11–14. But those contentions
challenge factual determinations or applications of law to
fact that we do not have jurisdiction to review. 38 U.S.C.
§ 7292(d)(2); see Robinson II, 557 F.3d at 1362; Prinkey v.
Shinseki, 735 F.3d 1375, 1383 (Fed. Cir. 2013); Dyment v.
Principi, 287 F.3d 1377, 1381 (Fed. Cir. 2002); Smith v.
Shinseki, 422 F. App’x 888, 890 (Fed. Cir. 2011). Mrs. Gay
also contends that the Veterans Court’s failure to address
Regents when denying reconsideration was error, Appel-
lant’s Br. 10–11, but we read the Veterans Court’s silence
on the point as implicitly rejecting the contention that Re-
gents requires a departure from the Robinson standard. As
we have explained above, we agree with that rejection.
III
For the foregoing reasons, we affirm the decision of the
Veterans Court.
The parties shall bear their own costs.
AFFIRMED