Walker v. Shinseki , 708 F.3d 1331 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
JAMES E. WALKER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2011-7184
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-2634, Judge Bruce E. Kasold.
______________________
Decided: February 21, 2013
______________________
DAVID S. FORMAN, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, of Washington, DC, argued for
claimant-appellant. With him on the brief was ANITA
BHUSHAN, of Atlanta, Georgia. Of counsel on the brief
were LOUIS J. GEORGE and BARTON F. STICHMAN, National
Veterans Legal Services Program, of Washington, DC. Of
counsel was JESSICA H. ROARK, Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, of Reston, Virginia.
2 WALKER v. SHINSEKI
ALEX P. HONTOS, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and BRIAN D. GRIFFIN, Attor-
ney, United States Department of Veterans Affairs, of
Washington, DC.
______________________
Before DYK, CLEVENGER, and WALLACH, Circuit Judges.
CLEVENGER, Circuit Judge.
This case involves a claim for disability compensation
filed by Julius E. Walker (“Mr. Walker”) on April 7, 2007,
for bilateral hearing loss. The Board of Veterans’ Appeals
(“Board”) denied the claim on May 5, 2010. Pending
appeal to the United States Court of Appeals for Veterans
Claims (“Veterans Court”), the claimant died, and his son,
Brig. Gen. James E. Walker (“Walker”), was substituted
as a potential accrued benefits beneficiary. The Veterans
Court affirmed the Board’s denial of the claim for bilat-
eral hearing loss, and Walker timely appealed to this
court. We have jurisdiction under 38 U.S.C. § 7292 and
for the reasons set forth below, we affirm.
I
Mr. Walker served in the United States Army Air
Force from March of 1943 to November of 1945. His
military Occupational Specialty was a four-engine air-
plane pilot, and during service he was a flight instructor.
The Muskogee, Oklahoma Regional Office (“RO”) denied
the 2007 claim, and Mr. Walker appealed to the Board.
The appeal included sworn statements from his son and
wife that his hearing loss began in service and continued
WALKER v. SHINSEKI 3
throughout his life. In support of his appeal, Mr. Walker
was eventually examined by a Department of Veterans
Affairs audiologist on September 17, 2009. The audiolo-
gist was instructed to conduct an examination, and asked
“[i]f hearing loss is diagnosed is it at least as likely as not
due to his military service as a pilot. Please provide
medical rational[e] for opinion provided.”
Because Mr. Walker’s service medical records were
not available due to a fire in the facility housing the
records, the examiner had only information obtained from
Mr. Walker and his grandson, who related Mr. Walker’s
difficulty in hearing and his history of bilateral hearing
loss. The examiner noted that noise exposure in service is
conceded, and diagnosed Mr. Walker as suffering from
bilateral hearing loss that would qualify Mr. Walker for
compensation if he could establish service connection for
the diagnosed condition. The examiner however conclud-
ed that “the veteran’s hearing loss is less likely as not
caused primarily by military service as a pilot.” The
examiner reasoned that Mr. Walker served 60-65 years
ago, and that “[p]resbycusis (age-related hearing loss)
secondary to the veteran’s advanced age cannot be ex-
cluded as the primary etiology for the veteran’s hearing
loss.” The examiner also noted that Mr. Walker was
exposed to recreational noise by hunting game 7-8 times a
year throughout his life without use of any hearing pro-
tection. Based on this examination report, the RO denied
Mr. Walker’s claim.
Mr. Walker appealed to the Board. The Board had
the benefit of statements from Mr. Walker’s wife and son
to the effect that his hearing was normal upon entry into
service, he suffered significant hearing loss in his time as
a flight instructor, and his hearing slowly deteriorated in
the years following his service. Before addressing the
evidence in the case, the Board’s opinion set out the legal
criteria to be applied. In order to obtain disability com-
pensation under 38 U.S.C. §§ 1110, 1131 and
4 WALKER v. SHINSEKI
38 C.F.R. § 3.303(a), Walker had to satisfy a three-
element test: (1) the existence of a present disability; (2)
in-service incurrence or aggravation of a disease or injury;
and (3) a causal relationship between the present disabil-
ity and the disease or injury incurred or aggravated
during service – the so-called ‘nexus’ requirement. This
three-element test has been approved by this Court, see
Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009)
(quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.
Cir. 2004)), and is applied by the Veterans Court, see
Arms v. West, 12 Vet. App. 188 (1999). The Board also
noted that “if the condition noted during service is not
shown to be chronic, then generally a showing of continui-
ty of symptomatology after service is required for service
connection. 38 C.F.R. § 3.303(b) (2009).”
Applying the three-element test to the facts before it,
the Board concluded that the trained audiologist’s opinion
was entitled to more weight than the information Mr.
Walker and his grandson, and his wife and son had sup-
plied. Age and recreational noise were seen as the more
likely cause of Mr. Walker’s diagnosed bilateral hearing
loss. The Board thus concluded that Mr. Walker failed
under the three-element test to establish service connec-
tion for his bilateral hearing loss. The Board’s opinion did
not indicate whether it also found Mr. Walker’s claim
insufficient under 38 C.F.R. § 3.303(b). Mr. Walker
timely appealed to the Veterans Court, and as noted
above, upon Mr. Walker’s death, his son stepped into his
shoes for purposes of pursuit of his claim for compensa-
tion for bilateral hearing loss.
II
On appeal, Walker argued that the audiologist’s ex-
amination was inadequate, for failure to consider and
assess the “continuous long-standing symptomatology”
shown by the lay statements of the wife and son, which
were not before the examiner. Walker also argued that
WALKER v. SHINSEKI 5
the Board had not properly treated the lay evidence of
continuity of symptomatology, and sought a remand to
the Board for consideration of that evidence. The Veter-
ans Court affirmed the Board’s decision, also viewing the
case through the prism of the familiar three-part test for
service connection. The Veterans Court concluded that
the Board had adequately weighed the lay statements by
family members against the factors cited by the medical
examiner, and agreed with the medical examiner and the
Board that Mr. Walker’s diagnosed hearing loss was more
likely than not due to aging and recreational noise expo-
sure, not to noise exposure during service. The Veterans
Court’s decision did not refer to the possibility that Walk-
er could benefit from the provisions of 38 C.F.R. § 3.303(b)
by way of continuity of symptomatology. Walker’s request
for a remand was denied on the ground that remand is
unnecessary where it would result in additional burdens
on the government with no benefit flowing to the veteran.
Walker timely appealed the final decision of the Veterans
Court. The Secretary of Veterans Affairs (“Secretary”)
opposes.
We have jurisdiction under 38 U.S.C. § 7292, which
authorizes this court to interpret regulations issued by
the Secretary. As will be explained below, this appeal
requires us to interpret 38 C.F.R. § 3.303(b).
III
“Service connection” is a term of art that is used in
two ways, depending on the context in which the term is
expressed. The term applies to the ultimate entitlement
to disability compensation, after a veteran has satisfied
the three-element test or the test for entitlement to disa-
bility compensation for chronic diseases as set forth in
38 C.F.R. § 3.303(b). The term is also sometimes used to
refer to the second element of the three-element test,
namely that a disease or injury was incurred or aggravat-
ed while in service. The Secretary has promulgated
6 WALKER v. SHINSEKI
regulations on “Principles relating to service connection”
in 38 C.F.R. § 3.303, and in § 3.303(a), stating general
principles of service connection, the term is used in both
senses. “Service connection connotes many factors but
basically it means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred coincident with service in the
Armed Forces, or if preexisting such service, was aggra-
vated therein” (emphasis added). Subsection (a) also
refers to “each disabling condition…for which [a veteran]
seeks a service connection” and states that
“[d]eterminations as to service connection will be based on
review of the entire evidence of record.” Satisfaction of
the three-element test thus achieves service connection, in
both senses, under § 3.303(a). As noted above, the RO,
the Board, and the Veterans Court measured Walker’s
claim for compensation under the three-element test. We
need not dwell further on § 3.303(a), however, because
Walker on appeal has waived any claim to entitlement
under subsection (a).
Walker’s briefs on appeal, and his oral argument, re-
duce the appeal to a single question: whether Walker is
entitled to a remand for consideration of service connec-
tion for his diagnosed bi-lateral hearing loss under
38 C.F.R. § 3.303(b). The answer to this question requires
interpretation of the term “chronic disease” as it appears
in § 3.303(b). Under Walker’s interpretation of the term,
he is entitled to the remand he requests. Under the Secre-
tary’s interpretation, the Veterans Court correctly denied
the remand request. We thus turn to subsection (b) of
§ 3.303.
IV
Subsection (b) reads as follows:
(b) Chronicity and continuity. With chronic dis-
ease shown as such in service (or within the pre-
sumptive period under § 3.307), so as to permit a
WALKER v. SHINSEKI 7
finding of service connection, subsequent manifes-
tations of the same chronic disease at any later
date, however remote, are service connected, un-
less clearly attributable to intercurrent causes.
This does not mean that any manifestation of joint
pain, any abnormality of heart action or heart
sounds, any urinary findings of casts, or any
cough, in service will permit service connection of
arthritis, disease of the heart, nephritis, or pul-
monary disease, first shown as a clearcut clinical
entity, at some later date. For the showing of
chronic disease in service there is required a com-
bination of manifestations sufficient to identify
the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished
from merely isolated findings or a diagnosis in-
cluding the word “Chronic.” When the disease
identity is established (leprosy, tuberculosis, mul-
tiple sclerosis, etc.), there is no requirement of ev-
identiary showing of continuity. Continuity of
symptomatology is required only where the condi-
tion noted during service (or in the presumptive
period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legiti-
mately questioned. When the fact of chronicity in
service is not adequately supported, then a show-
ing of continuity after discharge is required to
support the claim.
Unlike subsection (a), which is not limited to any spe-
cific condition, subsection (b) restricts itself to chronic
diseases. Parsing through the language of the regulation,
two situations are revealed. First, there is an explicit rule
for when a chronic disease is “shown in service (or within
the presumptive period under § 3.307).” 1
1Section 3.307 deals with situations in which the vet-
eran can show no evidence of a chronic disease during the
8 WALKER v. SHINSEKI
The regulation equates “shown in service” with a reli-
able diagnosis of the chronic disease while in service.
Mere use of the word “chronic” does not suffice. For a
showing in service, “there is required a combination of
manifestations sufficient to identify the disease entity,
and sufficient observation to establish chronicity at the
time.” The regulation is clear that any manifestation of a
chronic disease, such as joint pain, etc., will not permit
service connection for the chronic disease associated with
the manifestation, in that instance, arthritis. To be
“shown in service,” the disease identity must be estab-
lished and the diagnosis not be subject to legitimate
question.
When a veteran satisfies the requirements for a
chronic disease shown in service (or within the presump-
tive period under § 3.307), then all subsequent manifesta-
tions of the same chronic disease at any later date,
however remote, are service connected, unless clearly
attributable to intercurrent causes. Thus if a veteran can
prove a chronic disease “shown in service,” and there are
no intercurrent causes, the manifestation of the chronic
disease present at the time the veteran seeks benefits
establishes service connection for the chronic disease. By
treating all subsequent manifestations as service connect-
ed, the veteran is relieved of the requirement to show a
causal relationship between the condition in service and
the condition for which disability compensation is sought.
period of service, but can show a chronic disease that had
become manifest to a degree of 10 percent or more within
a limited time, depending on the particular identity of the
chronic disease, after separation from service. Upon such
showing, the chronic disease “will be considered to have
been incurred in or aggravated by service,” thus satisfying
the second element of the three-element test. Walker
does not seek the benefit of § 3.307 to establish that his
bilateral hearing loss was incurred in service.
WALKER v. SHINSEKI 9
In short, there is no “nexus” requirement for compensa-
tion for a chronic disease which was shown in service, so
long as there is an absence of intercurrent causes to
explain post-service manifestations of the chronic disease.
Subsection (b) provides a second route by which a vet-
eran can establish service connection for a chronic dis-
ease. If evidence of a chronic condition is noted during
service or during the presumptive period, but the chronic
condition is not “shown to be chronic, or where the diag-
nosis of chronicity may be legitimately questioned,” i.e.,
“when the fact of chronicity in service is not adequately
supported,” then a showing of continuity of symptomatol-
ogy after discharge is required to support a claim for
disability compensation for the chronic disease. Proven
continuity of symptomatology establishes the link, or
nexus, between the current disease and serves as the
evidentiary tool to confirm the existence of the chronic
disease while in service or a presumptive period during
which existence in service is presumed. 2
V
Walker contends that the Veterans Court failed to ap-
ply the correct law to his case when it denied him a re-
2 In Savage v. Gober, 10 Vet. App. 488, 495-96 (1997),
the Veterans Court concluded that § 3.303(b) “provid[ed] a
substitute way of showing in-service incurrence and
medical nexus” for purpose of showing the ultimate con-
clusion of service connection. In Summers v. Gober, 225
F.3d 1293, 1296 (Fed. Cir. 2000) we noted that “[t]his
court has never affirmed the [Veterans Court’s] under-
standing in Savage of the impact of 38 C.F.R. § 3.303(b)
on the medical evidence of nexus requirement.” Subse-
quently, in Groves v. Peake, 524 F.3d 1306, 1309-10 (Fed.
Cir. 2008), at least for a chronic disease shown in service,
we agreed that absent intercurrent causes § 3.303(b)
supplies the medical nexus requirement.
10 WALKER v. SHINSEKI
mand to assess the evidence of continuity of sympto-
matology of his bilateral hearing loss. Although there is
no evidence of record of a diagnosis of bilateral hearing
loss during service, Walker argues that bilateral hearing
loss was noted in service by his wife and son and he has
presented evidence of continuity of symptomatology
following discharge to link his currently diagnosed bilat-
eral hearing loss with the hearing loss condition noted in
service. Walker asserts that the term “chronic disease” in
§ 3.303(b) should be interpreted to apply to any disease
that ordinarily would be considered chronic in the medical
arts. Walker cites Dorland’s Ilustrated Med. Dictionary
359 (32d ed. 2012): a chronic disease is a disease “persist-
ing over a long period of time.” Further, Walker cites the
definition in the Secretary’s Manual for Developing
Claims for Service Connection for Chronic or Tropical
Diseases, M21-1MR, Part IV, Subpart II, Chapter 1,
Section H: “A chronic disease is a disease of prolonged
duration, producing incapacitating symptoms of varying
degree that may undergo remission, and that is seldom
entirely cured with all residuals of damage being com-
pletely eradicated.” Based on these definitions of chronic
disease, Walker maintains that his father’s bi-lateral
hearing loss qualifies for assessment as a chronic disease
under § 3.303(b).
The Secretary does not disagree with the ordinary def-
initions of “chronic disease” offered by Walker. The
Secretary first points to 38 U.S.C. § 1011(3), where Con-
gress specified that “[t]he term ‘chronic disease’ includes –
[41 specifically named chronic diseases] and such other
chronic diseases as the Secretary may add to this list.”
Further, the Secretary points to 38 C.F.R. § 3.309(a),
which sets forth a specific list of chronic diseases that
includes those identified in the statute. The Secretary
emphasizes that bilateral hearing loss is not on the statu-
tory list of chronic diseases, nor is it included in the list of
chronic diseases set firth in § 3.309(a). The Secretary
WALKER v. SHINSEKI 11
thus concludes that “every ‘chronic disease’ is persistent
or long-lasting, but not every persistent or long-lasting
disease is a ‘chronic disease’” for purposes of § 3.303(b).”
Instead, the Secretary interprets § 3.303(b) to have se-
lected out of the complete range of potential chronic
diseases, specific ones that qualify for assessment under
§ 3.303(b). The only chronic diseases that qualify for
assessment under § 3.303(b), according to the Secretary,
are those listed in § 3.309(a). Because bilateral hearing
loss is undeniably not listed in § 3.309(a), the Secretary
maintains that Walker cannot have access to § 3.303(b).
The Secretary’s interpretative analysis considers
§ 3.303(b) in the context of § 3.307(a) and § 3.309(a), in
the light of the interlinkage of those regulations.
Section 3.307(a) deals with presumptive service con-
nection. As noted above, a veteran is not denied service
connection (in either of the two senses) simply because
there is no evidence of record of any kind of a chronic
disease while in service. Where a veteran can show
manifestation of a chronic disease to a degree of 10 per-
cent or more within stated time periods, § 3.307(a) pre-
sumes that the veteran incurred the disease in service,
thus establishing service connection in the narrower
sense. To achieve service connection in the broader,
ultimate, sense, the veteran carries the presumption of
service incurrence of a chronic disease back to § 3.303(b).
If the chronic disease was “shown” (i.e. well diagnosed
beyond question) in the presumptive period, § 3.303(b)
eliminates the nexus requirement on the basis of the
current manifestation of the chronic disease, unless
intercurrent causes undermine the automatic connection
between the in service showing and the present condition.
The Secretary correctly notes that a veteran seeking
ultimate service connection under § 3.303(b) on account of
a presumptive service connection can only do so for the
chronic diseases that are named in § 3.309(a), because
12 WALKER v. SHINSEKI
§ 3.307(a) states “[n]o condition other than one listed in
§ 3.309(a) will be considered chronic.”
The same linkage exists between § 3.307(a) and
§ 3.309(a) in the situation where the veteran cannot
establish a chronic disease “shown” in the presumptive
period for purposes of § 3.303(b) but can point to a chronic
condition that was noted in the presumptive period but
the notation was insufficient to support a diagnosis be-
yond legitimate question. In that instance, the veteran
can benefit from continuity of symptomatology to estab-
lish service connection in the ultimate sense, but only if
his chronic disease is one listed in § 3.309(a).
The Secretary recognizes that there is no explicit
cross reference to § 3.309(a) stated in § 3.303(b). Walker
relies on the lack of such an express linkage to support his
view that § 3.303(b) applies to any disease that would be
considered “chronic” in medicine. But the absence of a
direct linkage, if dispositive, would leave § 3.303(b) stand-
ing as a regulation that treats veterans differently, de-
pending on the point in time that their chronic diseases
were “shown” or “noted.” Under Walker’s interpretation
of “chronic disease” a veteran whose chronic disease is
either shown or noted in service would benefit from
§ 3.303(b) so long as his disease met a medical definition
of “chronic,” but a veteran whose chronic disease was
shown or noted only in the presumptive period (in the
absence of in-service records) would benefit from
§ 3.303(b) only if his chronic disease is listed in § 3.309(a).
The Secretary argues that such difference in treatment
has no reason, and Walker has pointed to none. In order
to treat all veterans equally, the Secretary interprets
§ 3.303(b) as implicitly constrained by § 3.309(a) in all
chronic disease cases. We think the Secretary’s interpre-
tation is reasonable. The absence of an explicit cross
reference to § 3.309(a) in § 3.303(b) neither undermines
the Secretary’s case nor makes Walker’s case. Instead,
the absence of the cross reference, given the clear linkage
WALKER v. SHINSEKI 13
of § 3.307(a) and § 3.309(a) to § 3.303, creates ambiguity
as to whether § 3.309(a) constrains the application of
§ 3.303(b) in all, or only some, chronic disease cases.
The Secretary reads § 3.303(b) to provide an alterna-
tive path to satisfaction of the standard three-element
test for entitlement to disability compensation, but only
for a limited number of identified chronic diseases. For
other diseases that might be considered chronic, a veteran
must pursue his claim through § 3.303(a), where medical
nexus of a relationship between the condition in service
and the present condition is required.
Even though § 3.303(b) does not contain a specific
cross reference to § 3.309(a), we think a harmonious
reading of §§ 3.303(b), 3.307(a) and 3.309(a) supports an
implicit cross reference to § 3.309(a) in § 3.303(b). We are
thus persuaded that the Secretary’s interpretation of the
regulation is correct. 3
For the reasons explained above, we conclude that
properly interpreted, and consistent with the Secretary’s
interpretation, § 3.303(b) is constrained by § 3.309(a),
regardless of the point in time when a veteran’s chronic
disease is either shown or noted, in that the regulation is
only available to establish service connection for the
3 The Secretary advises us that he disagrees with
Savage v. Gober and other Veterans Court decisions in
cases that have extended § 3.303(b), in reliance on Savage
v. Gober, beyond the list of chronic diseases found in
§ 3.309(a). For example, the Veterans Court gave the
benefit of §3.303(b) to a claim for psoriasis in Kent v.
Nicholson, 20 Vet. App. 1 (2006), and to a claim for vari-
cose veins in Barr v. Nicholson, 21 Vet. App. 303 (2007),
even though neither condition is named as a chronic
disease in § 3.309(a).
14 WALKER v. SHINSEKI
specific chronic diseases listed in § 3.309(a). 4 We also
agree with the Secretary’s view that diseases that would
be considered “chronic” in a medical sense, but which are
not listed in § 3.309(a), may qualify for service connection
under the three-element test under § 3.303(a). The pri-
mary difference between a chronic disease that qualifies
for § 3.303(b) analysis, and one that must be tested under
§ 3.303(a), is that the latter must satisfy the “nexus”
requirement of the three-element test, whereas the former
benefits from presumptive service connection (absent
intercurrent causes) or service connection via continuity
of symptomatology.
In addition to arguing that the continuity of sympto-
matology avenue to service connection under §3.303(b)
should be available for chronic diseases not enumerated
in the statute or in the only regulation that lists named
chronic diseases, Walker makes a broader argument that
continuity of symptomatology is not even restricted to
chronic diseases, but instead is available to gain service
connection for any non-chronic disease or injury.
Walker grounds this broader argument on the follow-
ing language in § 3.303(b): “Continuity of symptomatology
is required only where the condition noted during service
(or in the presumptive period) is not, in fact, shown to be
chronic or where the diagnosis of chronicity may be legit-
4 The question of whether and to what extent
§ 3.303(b) is constrained by § 3.309(a) is new to this court.
This question has not arisen for adjudication in the lim-
ited number of our cases that have cited § 3.303(b). In one
case, in dictum, we suggested that § 3.303(b) is not so
constrained. See Groves v. Peake, 524 F.3d 1306, 1309 n.1
(Fed. Cir. 2008). That suggestion is incorrect, and the
decisions of the Veterans Court that have extended conti-
nuity of symptomatology under § 3.303(b) to chronic
diseases not enumerated in § 3.309(a) are hereby abrogat-
ed.
WALKER v. SHINSEKI 15
imately questioned.” Walker also points to language in
opinions of the Veterans Court, including Savage v.
Gober, supra, stating generally that continuity of symp-
tomatology is an alternative way to establish service
connection. Walker further points to dictum in our cases
suggesting that continuity of symptomatology is not
restricted to establishing service connection for chronic
diseases. See, Groves v. Peake, 524 F.3d 1306, 1309 n.1
(Fed. Cir. 2008); Szemraj v. Principi, 357 F.3d 1370, 1376
n.2 (Fed. Cir. 2004).
We first address Walker’s reliance of the language of
the regulation to support his broader claim. Sec-
tion 3.303(b) is addressed to “Chronicity and continuity.”
The only kind of disease mentioned in the regulation is
chronic disease. The regulation, as parsed above, refers to
chronic diseases that are either “shown in service,” mean-
ing clearly diagnosed beyond legitimate question, or not
so shown in service. When a “condition noted in service”
is not sufficient to warrant the conclusion that the chronic
disease is “shown to be chronic” in service, continuity of
symptomatology may suffice to establish that the veteran
incurred a chronic disease in service. The natural reading
of the “condition” noted in service is a condition indicative
of a chronic disease, but not sufficiently indicative to
demonstrate that the chronic disease is “shown to be
chronic.” Nothing in § 3.303(b) suggests that the regula-
tion would have any effect beyond affording an alternative
route for proving service connection for chronic diseases.
The clear purpose of the regulation is to relax the re-
quirements of § 3.303(a) for establishing service connec-
tion for certain chronic diseases. Walker’s argument that
§ 3.303(b) applies to every disease or condition would
undermine the evidentiary requirement for satisfaction of
the third, or nexus, step in the three-element test under
§ 3.303(a).
The regulatory history predating § 3.303(b) indicates
that continuity of symptomatology is an evidentiary tool
16 WALKER v. SHINSEKI
to aid in evaluation of a chronic disease in service. Sec-
tions 3.303 and 3.307 derive in substantial part from
former 38 C.F.R. § 3.80 (1956), which in turn derives from
another regulation, R. & P. R. 1080(A), that incorporated
continuity of symptomatology in 1947. R. & P. R. 1080(A)
provided:
When the etiological identity is perfect . . . there is
no requirement of evidentiary showing of continu-
ity. Continuity of symptomatology is required only
where the condition noted during service is not in
fact shown to be chronic or where the diagnosis of
chronicity may be legitimately questioned. When
the fact of chronicity during service is not, in the
opinion of the adjudicating agency, adequately
supported, then there may be reason to require
some showing of continuity after discharge to
support the claim.
See also 38 C.F.R. § 3.80 (1956) (containing similar lan-
guage). This regulatory history demonstrates that the
same language in § 3.303(b) to which Walker points has
been in the operative regulations for service connection
for chronic diseases since at least 1947. The correct un-
derstanding of the “condition noted during service” is that
the condition is one that is indicative of but not disposi-
tive of a chronic disease.
We thus reject Walker’s broader argument that conti-
nuity of symptomatology in § 3.303(b) has any role other
than to afford an alternative route to service connection
for specific chronic diseases. Suggestions or holdings to
the contrary in any decisions of the Veterans Court, and
dictum to the contrary in our precedent, are incorrect and
of no effect.
The Secretary is free to amend § 3.309(a) if he deter-
mines that chronic diseases beyond those currently listed
should benefit from the application of § 3.303(b).
See 38 U.S.C. § 1101(3). Indeed, during supplemental
WALKER v. SHINSEKI 17
briefing in this case, the court was informed that the
Secretary is currently considering a substantial revision
of his regulations concerning service connection for disa-
bility compensation.
VI
Because Walker seeks compensation for a condition
that is not listed as a chronic disease in § 3.309(a), his
claim cannot be processed under § 3.303(b). 5 For that
reason, it was not error for the Veterans Court to deny
Walker’s request for a remand to the Board to conduct a
§ 3.303(b) assessment of the facts of record. Walker’s
claim for relief under § 3.303(a) was judged against him
by the Board and the Veterans Court, and he limited his
appeal to his chances under § 3.303(b). For the reasons
set forth above, we affirm the final decision of the Veter-
ans Court.
AFFIRMED
COSTS
No costs.
5 Under Savage v. Gober, and its progeny, cases with
which the Secretary has expressed disagreement, the
continuity of symptomatology test requires not only
showing the continuity, but showing a medical nexus
between the current condition on which the claim is
staked and the continuity of symptomatology. Savage v.
Gober, 10 Vet. App. at 498. We do not opine on how
§ 3.303(b) operates in practice, and we emphasize that the
only issue regarding § 3.303(b) on which we rule today is
that the regulation benefits only chronic diseases listed in
§ 3.309(a).