Beck v. Dept. Of Veterans Affairs , 439 F. App'x 888 ( 2011 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    __________________________
    JAMES BECK,
    Claimant-Appellant,
    v.
    ERIC K. SHINSEKI,
    SECRETARY OF VETERANS AFFAIRS,
    Respondent-Appellee.
    __________________________
    2011-7039
    __________________________
    Appeal from the United States Court of Appeals for
    Veterans Claims in Case No. 08-3834, Judge Alan G.
    Lance, Sr.
    _________________________
    Decided: September 9, 2011
    _________________________
    DARLA J. LILLEY, Lilley Law Firm P.L.L.C., of Dain-
    gerfield, Texas, for claimant-appellant.
    ALLISON KIDD-MILLER, Senior Trial Counsel, Com-
    mercial Litigation Branch, Civil Division, United States
    Department of Justice, of Washington, DC, for respon-
    dent-appellee. With her on the brief were TONY WEST,
    Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
    BECK   v. DVA                                            2
    tor, and KIRK T. MANHARDT, Assistant Director. Of coun-
    sel on the brief were DAVID J. BARRANS, Deputy Assistant
    General Counsel, and TRACEY P. WARREN, Attorney,
    United States Department of Veteran Affairs, of Wash-
    ington, DC.
    __________________________
    Before NEWMAN, O’MALLEY, and REYNA Circuit Judges
    PER CURIAM.
    James Beck (“Beck”) appeals the decision of the
    United States Court of Appeals for Veterans Claims (the
    “Veterans Court”) affirming the judgment of the Board of
    Veterans Appeals (the “Board”). The Veterans Court
    affirmed the Board’s judgment because it concluded that
    treatise evidence submitted by Beck was insufficient to
    establish a nexus between his back injury and his service,
    or undermine the VA medical examiner’s opinion that
    Beck’s back injury was not service connected. Beck as-
    serts this was error because the Veterans Court: (1)
    refused to consider the treatise evidence without a sup-
    porting medical opinion; (2) refused to consider the trea-
    tise evidence for the purpose of impeaching the medical
    examiner’s opinion; and (3) failed to apply the correct
    standard for weighing conflicting medical evidence.
    Because we conclude that this appeal does not invoke our
    jurisdiction under Morgan v. Principi, 
    327 F.3d 1357
     (Fed.
    Cir. 2003), or challenge the validity of any statute or
    regulation, any interpretations thereof, or raise any
    constitutional controversies, we dismiss for lack of juris-
    diction.
    BACKGROUND
    Beck served on active duty in the U.S. Navy from
    February 1962 to May 1966. Appendix (“A”) 8. In 1998,
    Beck filed a claim for service connection for his back
    3                                               BECK   v. DVA
    injury. While Beck’s service records and separation
    examination make no mention of a back injury, according
    to Beck, he injured his back in 1963, while serving aboard
    the U.S.S. Kitty Hawk. The injury occurred when Beck
    and another sailor were carrying a two-hundred pound
    amplifier up a stairwell. Beck testified that, while carry-
    ing the amplifier, “he felt something go in his back.” A 34.
    Beck indicated that because the injury was painful, he
    went to sick call. At sick call, however, he did not see a
    doctor and was only given a cursory examination. He was
    not prescribed pain medication.
    During the remainder of his service, Beck did not re-
    ceive additional treatment for his back injury. Beck’s
    separation physical, moreover, stated that his spine/other
    musculoskeletal was normal, and there was no mention of
    any back injury. After discharge, Beck indicated that he
    first sought treatment for his back in the late 1960s.
    Records relating to this treatment, however, do not exist
    because they were destroyed. Accordingly, the earliest
    medical records describing his back injury are from the
    early 1990s. 1
    The first of these medical records, a May 1990 CT
    scan, was interpreted by Beck’s doctor as being negative,
    with vertebrae, facets and facet joints described as unre-
    markable and no evidence of a herniated disc. In 1992,
    Beck had another CT scan; his doctor found this scan to
    be abnormal. As a result of this abnormal scan, Beck
    1   Additionally, Beck submitted a copy of a life in-
    surance application form from March 1979. The form
    listed the name of a doctor who Beck stated had treated
    him for back pain during the 1970s. The form did not,
    however, indicate that Beck suffered from back pain.
    Indeed, on the form Beck denied having had any illness,
    surgical procedure, or treatment by a physician in the
    past three years.
    BECK    v. DVA                                             4
    underwent a laminotomy and disc excision surgery.
    On the basis of this record and a letter from Dr.
    Robert D. Taylor, Beck sought service connection for his
    back injury. The VA regional office (“RO”) denied his
    claim. After this initial denial of his claim, Beck submit-
    ted two additional pieces of evidence in support of his
    claim. The first was a statement from his wife, indicating
    that Beck injured his back in service. The second was
    letter from Dr. Ira C. Denton, noting that he performed
    back surgery on Beck in 1992. Submission of this addi-
    tional evidence 2 resulted in an extensive procedural
    history, which is not relevant to this appeal. This history
    culminated in December 2004 with the Board remanding
    the case for, among other things, a medical examination
    of Beck.
    Beck’s medical examination occurred in June 2007,
    and an addendum to the examination was submitted in
    December 2007. The examiner concluded that Beck’s
    back injury “is less likely as not (less than 50/50 probabil-
    ity) caused by or a result of non-treated and non-reported
    back injury in 1963.” A 9. Explaining the rational for
    this conclusion, the examiner stated:
    Veteran’s c-file was carefully reviewed. This ex-
    aminer could not find evidence of any low back
    complaints between 1962-1966. The separation
    exam in 5.3.1966 showed normal spine exam. The
    2   In January of 2004, Beck also submitted a letter
    written By Dr. Evans, indicating that he had treated Beck
    for his back injury since 1998. The letter stated that
    Beck’s history of back problems began with his injury
    while in service. Dr. Evans concluded that, because Beck
    had sustained no other acute injury to his back since his
    service, it was therefore as likely as not that Beck’s recur-
    rent back pain was the result of his 1963 injury while in
    the Navy.
    5                                              BECK   v. DVA
    CT scan in 5.31.1990 was normal. An abnormal
    CT scan was seen in 11/16/1992 which led to a
    laminotomy and disc excision. The earliest com-
    plaints of low back pain was [sic] documented by
    veteran’s claim that he was seen and treated dur-
    ing 1972-1973 for low back pain (Dr. Lienke has
    no medical records). Even if this was the case,
    veteran complained of low back pain 10 years af-
    ter the supposed incident. This is too far removed
    to be connected to the non-documented injury in
    1963, which makes veteran’s current low back
    condition less likely to be related to the non-
    documented low back injury.
    
    Id.
     In response to this report, before the Board, Beck
    submitted treatise evidence 3 and lay statements in sup-
    port of his claim. After considering all of the evidence
    before it, the Board concluded that Beck’s back injury was
    not service connected.
    With respect to the conflicting medical evidence, the
    Board assigned greater weight to the examiner’s opinion
    than Beck’s private doctors because “it was based on a
    review of the veteran’s medical history; whereas there is
    no evidence that the veteran’s private doctors ever re-
    viewed his service treatment records.” A 38. The Board
    placed particular importance on the fact that the exam-
    iner emphasized that Beck showed no back disability at
    the time of separation while “none of the private opinions
    even mentioned the lack of a back disability in service or
    the lack of any treatment for a number of years after
    service.” 
    Id.
     The Board concluded that the “failure to
    3  According to Beck, the treatise evidence reflected
    “that most people with back pain do not seek medical
    treatment; back pain is typically recurrent; and the
    absence of back pain on any give[n] day does not imply
    normal lumbar function.” A 66.
    BECK   v. DVA                                               6
    address this relevant fact renders the private medical
    opinions less credible than the VA examiner’s report.” 
    Id.
    Regarding the treatises submitted by Beck, the Board
    noted that
    a medical article or treatise can provide important
    support when combined with an opinion of a
    medical professional if the medical article or trea-
    tise evidence discusses generic relationships with
    a degree of certainty such that, under the facts of
    a specific case, there is at least plausible causality
    based upon objective facts rather than on a un-
    substantiated lay medical opinion.
    A 38–39 (internal quotations and citation omitted). In
    Beck’s case, however, because the treatise evidence sub-
    mitted was not accompanied by the opinion of any medical
    expert, the Board concluded that the treatise evidence
    was insufficient to establish the required nexus between
    his back injury and his time in service.
    Finally, the Board determined that the various letters
    from Beck’s friends and family had minimal probative
    value because the letters were not entirely consistent, and
    they were written 40 years after the relevant events
    occurred. In light of these conclusions, on October 31,
    2008, the Board denied Beck’s claim. Beck received notice
    of this decision, and he timely appealed to the Veterans
    Court.
    Before the Veterans Court, Beck argued that the
    Board’s rejection of the treatise evidence was contrary to
    law because treatise evidence can be considered even if it
    is not supported by a medical opinion. Beck asserted that
    the Board erred by refusing to consider the treatise evi-
    dence for two distinct purposes: (1) to establish an etio-
    logical nexus; and (2) to undermine the credibility of the
    7                                               BECK   v. DVA
    medical examiner’s opinion. In his reply brief, however,
    Beck abandoned his arguments with respect to establish-
    ing an etiological nexus. Instead, Beck framed the issue
    before the Veterans Court as “whether impeachment
    evidence in the form of treatise evidence must be sup-
    ported by a medical opinion.” A 65 n.5.
    After considering the parties’ arguments, the Veter-
    ans Court affirmed the Board’s decision. Specifically, the
    Veterans Court concluded that the Board did not commit
    legal error by refusing to consider the treatise evidence
    for the purpose of impeaching the examiner’s opinion. At
    the outset, the Veterans Court noted that treatise evi-
    dence may be invoked to show a nexus in the absence of a
    supporting medical opinion. The Veterans Court high-
    lighted that, while the Board seemed to “conflate” the
    possible situations in which treatise evidence will and will
    not be considered absent a supporting medical opinion,
    the Board seemed to mean that Beck’s treatise evidence
    was too uncertain to meet the requirements for considera-
    tion absent a supporting medical opinion. A 12. Impor-
    tantly, the Veterans Court found that the treatise
    evidence was “quite general.” A 13. In light of this de-
    termination, the Veterans Court concluded that it was
    “unclear how this information would impeach the VA
    examiner’s competence,” and that Beck had “not met his
    burden of demonstrating that the Board erred in finding
    the examiner and his opinion competent.” 
    Id.
    Beck timely appealed this decision.
    DISCUSSION
    I.
    Our review of Veterans Court decisions is limited by
    statute. See Yates v. West, 
    213 F.3d 1372
    , 1373–74 (Fed.
    Cir. 2000). By statute, our jurisdiction over appeals from
    BECK   v. DVA                                             8
    the Veterans Court is limited to those appeals that chal-
    lenge the validity of a decision of the Veterans Court with
    respect to a rule of law or the validity of any statute or
    regulation, any interpretations thereof, or that raise any
    constitutional controversies. See 
    38 U.S.C. § 7292
     (2006).
    We do not have jurisdiction to hear appeals challenging
    factual determinations or the application of law to the
    facts of a particular case, unless there is a constitutional
    issue present. See § 7292(d)(2).
    II.
    On appeal, Beck asserts that the Veterans Court
    erred by misinterpreting: (1) 
    38 C.F.R. § 3.159
    (a); (2) 38
    U.S.C. § 5103A and 
    38 C.F.R. §§ 4.1
    , 4.2; and (3) the rule
    of law established in Nieves-Rodriguez v. Peake, 
    22 Vet. App. 295
     (2008). The government argues that we lack
    subject matter jurisdiction over this appeal because
    Beck’s appeal does not actually challenge the Veterans
    Court’s interpretation of any statute or rule of law. For
    the reasons discussed below, we agree with the govern-
    ment. Accordingly, we lack subject matter jurisdiction
    and dismiss this appeal.
    Beck’s first and second arguments on appeal are
    based on an incorrect reading of the Veterans Court’s
    decision. While Beck raises these arguments as separate
    and distinct, because they present related issues, we will
    address them together. In essence, these arguments are
    premised on Beck’s assertion that the Veterans Court
    refused to consider the treatise evidence because it was
    not accompanied by a medical expert opinion, and that
    the Veterans Court found that the treatise evidence could
    not be used to undermine the credibility of the examiner’s
    medical opinion. Beck’s characterization of the Veterans
    Court’s decision is inaccurate.
    The Veterans Court did not rule that treatise evidence
    9                                                BECK   v. DVA
    can only be considered if it is accompanied by a medical
    expert opinion. The Veterans Court explicitly stated that
    medical treatises, standing alone, “may provide sufficient
    evidence of a causal connection when it discusses generic
    relationships with a degree of certainty so that the causal
    connection is based on objective facts rather than on an
    unsubstantiated lay medical opinion.” A 11 (internal
    quotations and citation omitted). The Veterans Court
    further explained that this court has held that a veteran
    may use treatise evidence to establish a nexus without a
    supporting medical opinion “in an appropriate case.” 
    Id.
    (citing Hensley v. West, 
    212 F.3d 1255
    , 1265 (Fed. Cir.
    2000)). In light of this precedent, the Veterans Court held
    that the Board did not err by dismissing the treatise
    evidence because it was too uncertain to be considered
    without a supporting medical opinion, i.e., that this was
    not an “appropriate case” to consider such evidence with-
    out a supporting opinion. The Veterans Court, moreover,
    noted that “the treatise evidence submitted discusses
    back problems and their etiologies generally, supporting
    the Board’s conclusion that a supporting medical opinion
    was required.” A 12 (emphasis added). This discussion
    makes clear that, contrary to Beck’s assertion, the Veter-
    ans Court did not rule that treatise evidence must be
    accompanied by a supporting medical opinion to be con-
    sidered.
    Nor did the Veterans Court rule that treatise evidence
    could only be considered for the purpose of establishing a
    nexus. In section B of its opinion, the Veterans Court
    explicitly addressed Beck’s argument that “the Board
    should have evaluated the credibility of the examiner’s
    statements given the treatise evidence.” A 12. It found
    that, in light of the general nature of treatise evidence, it
    was “unclear how this information would impeach the VA
    examiner’s competence.” A 13. Furthermore, the Veter-
    BECK   v. DVA                                             10
    ans Court concluded that Beck “had not met his burden in
    demonstrating that the Board erred in finding the exam-
    iner and his opinion competent” because the treatise
    evidence was insufficient to undermine the Board’s con-
    clusion. 
    Id.
     Additionally, the Veterans Court did not rule
    that the Board was only required to consider treatise
    evidence for the purpose of impeachment if the evidence
    was supported by a medical opinion or independently
    supported a nexus.
    As the above discussion demonstrates, Beck’s first
    and second arguments are premised on an incorrect
    reading of the Veterans Court’s opinion. The Veterans
    Court never made the rulings that Beck asserts are
    statutory misinterpretations.      Because the Veterans
    Court did not make any of these rulings, this appeal does
    not involve a challenge to an interpretation relied upon by
    the Veterans Court. Beck’s first and second arguments,
    therefore, do not present an issue over which we have
    subject matter jurisdiction.
    Turning to Beck’s last argument that we have rule of
    law subject matter jurisdiction pursuant to Morgan v.
    Principi, 
    327 F.3d 1357
     (Fed. Cir. 2003), we conclude that
    we do not posses this type of jurisdiction in this case. In
    Morgan, we held that
    in a case . . . in which the decision below regard-
    ing a governing rule of law would have been al-
    tered by adopting the position being urged, this
    court has jurisdiction to entertain the matter,
    even though the issue underlying the stated posi-
    tion was not “relied on” by the Veterans Court.
    
    327 F.3d at 1363
    . On the basis of Morgan, Beck asserts
    that we have jurisdiction over this appeal because Nieves-
    Rodriguez v. Peake, 
    22 Vet. App. 295
     (2008), established a
    rule of law that the Veterans Court failed to address and
    11                                              BECK   v. DVA
    that, if it had adopted his position, the outcome of the
    decision below would have been altered.
    In Nieves-Rodriguez, the Veterans Court stated that
    the three factors discussed in 702 of the Federal Rules of
    Evidence 4 are
    important, guiding factors to be used by the Board
    in evaluating the probative value of medical opin-
    ion evidence . . . . Therefore, where the Board fa-
    vors one medical opinion over another, the Court
    will review the Board’s decision to determine
    whether these criteria have been met or properly
    applied.
    22 Vet. App. at 302. Beck asserts that he urged the
    Veterans Court to find that the Board erred by failing to
    evaluate the sufficiency of the examiner’s report as re-
    quired by Nieves-Rodriguez. Appellant’s Br. at 16. The
    Veterans Court did not mention the Nieves-Rodriguez
    factors when it evaluated the Board’s decision. On the
    basis of this omission, Beck asserts that, because “the
    decision below would have been altered by the [Veterans
    Court] adopting the position urged by Appellant,” we have
    rule of law jurisdiction over this case.
    In response, the government argues that we do not
    have subject matter jurisdiction because Nieves-Rodriguez
    did not establish a rule of law within the meaning of
    Morgan, and even if it did, Beck has not established that
    the outcome below would have been different if the Veter-
    4  Expert testimony may be received from a suitably
    qualified expert under the following conditions: (1) the
    testimony is based upon sufficient facts or data; (2) the
    testimony is the product of reliable principles and meth-
    ods; and (3) the expert witness has applied the principles
    and methods reliably to the facts of the case. See Fed. R.
    Evid. 702.
    BECK   v. DVA                                           12
    ans Court had adopted his position. Even assuming that
    Nieves-Rodriguez established a rule of law within the
    meaning of Morgan, an issue upon which we express no
    opinion, we still do not have subject matter jurisdiction
    over Beck’s appeal.
    Beck’s argument fails because he has not established
    that the outcome below would have been different if the
    Veterans Court adopted his position. With respect to the
    Board’s decision to assign greater weight to the exam-
    iner’s opinion, the Veterans Court noted that the Board
    reached this decision “because [examiner’s opinion] was
    based on a review of the veteran’s medical history;
    whereas there is no evidence that the veteran’s private
    doctors ever reviewed his service treatment records.” A
    38. The Board noted, moreover, that “[w]hile the showing
    of no back disability at the time of separation was of
    particular note to the VA examiner, none of the private
    opinions even mentioned the lack of a back disability in
    service or the lack of any treatment for a number of years
    after service.” Id.
    In other words, the Board assigned greater weight to
    the examiner’s opinion for three reasons: (1) his opinion
    was based on a review of Beck’s entire medical history; (2)
    he was the only expert to consider the fact that Beck had
    no back disability at discharge; and (3) Beck did not
    receive any treatment for a number of years after dis-
    charge. These findings on the credibility and weight of
    the evidence are factual determinations that the Veterans
    Court reviews for clear error. 
    38 U.S.C. § 7261
    (a)(4). Of
    the three reasons cited by the Board, the treatise evidence
    only undermines the third reason because it disclosed
    that “most people with back pain do not seek medical
    treatment; back pain is typically recurrent; and the
    absence of back pain on any given day does not imply
    normal lumbar function.” A 66. In light of this fact, Beck
    13                                             BECK   v. DVA
    cannot establish that if the Veterans Court had applied
    the Nieves-Rodriguez factors the outcome would have
    been different because, even if the treatise evidence was
    considered as part of this inquiry, the Board’s factual
    findings were still supported by two independent reasons;
    i.e., the factual findings were not clearly erroneous. Beck
    cannot, therefore, meet the requirements of Morgan.
    For the reasons discussed above, we lack jurisdiction
    to hear this appeal because it does not involve the inter-
    pretation of a statute or rule of law jurisdiction under
    Morgan.
    COSTS
    Each party shall bear its own costs.
    DISMISSED
    

Document Info

Docket Number: 2011-7039

Citation Numbers: 439 Fed. Appx. 888, 439 F. App'x 888, 2011 U.S. App. LEXIS 18749, 2011 WL 4005018

Judges: Newman, O'Malley, Per Curiam, Reyna

Filed Date: 9/9/2011

Precedential Status: Non-Precedential

Modified Date: 10/19/2024