Lapointe v. Nicholson , 222 F. App'x 962 ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
07-7016
JAMES E. LAPOINTE,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
James E. Lapointe, of Quincy, Massachusetts, pro se.
Gregg M. Schwind, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, and Steven J. Gillingham, Assistant Director. Of counsel on the brief were
Richard J. Hipolit, Assistant General Counsel, and Martie Adelman, Attorney, United
States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge William A. Moorman
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
07-7016
JAMES E. LAPOINTE,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs
Respondent-Appellee.
____________________________
DECIDED: March 14, 2007
____________________________
Before MAYER, LOURIE, and DYK, Circuit Judges.
Opinion for the court filed by Circuit Judge LOURIE. Dissenting opinion filed by Circuit
Judge Mayer.
LOURIE, Circuit Judge.
DECISION
James E. LaPointe (“LaPointe”) appeals from the final decision of the United
States Court of Appeals for Veterans Claims (the “Veterans Court”) affirming the
decision of the Board of Veterans’ Appeals (the “Board”) that denied his claim for a
disability rating greater than thirty percent for service-connected asthma. LaPointe v.
Nicholson, No. 03-2179 (Vet. App. Sept. 20, 2006) (“Decision on Appeal”). We lack
jurisdiction to consider LaPointe’s challenges to the Veterans Court’s application of law
to the facts of his case. We do have jurisdiction to consider LaPointe’s arguments
based on the validity of 38 C.F.R. § 3.655 and constitutional due process. We therefore
affirm-in-part and dismiss-in-part.
BACKGROUND
LaPointe served on active duty in the United States Navy from July 1983 to
December 1989. In May 1991, LaPointe was granted service connection for asthma
with allergic rhinitis symptoms. The Department of Veterans Affairs (“VA”) regional
office (“RO”) assigned him a thirty percent disability rating, with an effective date of
January 1990. Decision on Appeal, slip op. at 1.
In August 2002, LaPointe filed a claim for an increased disability rating “based on
intermittent courses of systemic corticosteroids.” Id. The claim was referred to the RO
for appropriate development. The RO obtained July 2002 medical records from a
private physician, Dr. Hopkins, and scheduled a VA medical examination. LaPointe
elected not to attend the examination, stating that “[i]f you have the records from Dr.
Hopkins then you have sufficient evidence to rate the case.” Id. The RO issued a
decision in November 2002 maintaining the disability rating at thirty percent upon finding
that the evidence did not support an increase in rating. The RO noted that the medical
records only reflected treatment received in July 2002, and no records were available
beyond that date.
In December 2002, LaPointe filed a claim for a 100 percent disability rating. The
RO denied his claim later that month based on its review of the evidence. LaPointe
appealed that decision to the Board. In December 2003, the Board affirmed the RO’s
decision, noting that LaPointe failed to report to the VA examination without good cause
where the severity of his asthma could have been determined. Board Decision, slip op.
07-7016 -2-
at 2-3. Thus, his claim for an increased disability rating was denied. LaPointe then
appealed to the Veterans Court.
On September 20, 2006, the Veterans Court affirmed that portion of the Board’s
decision. Id. at 4. The court agreed with the Board’s conclusion that LaPointe’s daily
use of a corticosteroid inhaler did not warrant a disability rating of 100 percent pursuant
to Diagnostic Code (“DC”) 6602, because that provision “makes a distinction between
the intermittent or daily use of systemic corticosteroids and the intermittent or daily use
of inhaled corticosteroids.” Id. at 2. The court further rejected LaPointe’s additional
arguments, but remanded the case for consideration of “appellant’s claim for separate
ratings for allergic rhinitis, conjunctivitis and sinusitis.” Id. at 4.
LaPointe timely filed an appeal to this court. We have jurisdiction to hear this
appeal pursuant to 38 U.S.C. § 7292.
DISCUSSION
We have limited jurisdiction to review a decision of the Veterans Court. We
cannot, absent a constitutional issue, review a challenge to a factual determination or a
challenge to a law or regulation as applied to the facts of a particular case. 38 U.S.C. §
7292(d)(2) (2000). We may, however, review the validity of “a rule of law or of any
statute or regulation . . . or any interpretation thereof . . . that was relied on by the
[Veterans] Court in making the decision.” 38 U.S.C. § 7292(a) (2000). Such legal
determinations of the Veterans Court are reviewed without deference. Prenzler v.
Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991).
LaPointe raises three main contentions on appeal. First, LaPointe contends that
the Veterans Court misinterpreted 38 C.F.R. § 4.97 DC 6602 by adopting a more
07-7016 -3-
restrictive form of the evaluation criteria. Second, LaPointe challenges the validity of 38
C.F.R. § 3.655(b), which provides that a claim for an increase in benefits shall be
denied in the event that “a claimant fails to report for an examination.” Third, LaPointe
contends that his due process rights had been violated because the adjudication and
hearing of his claim were arranged to be held in New Hampshire, not in his home state
of Massachusetts. The Secretary responds that all of the arguments raised in
LaPointe’s appeal involve the Board’s factual determinations and the Veterans Court’s
application of the law to the facts, over which this court lacks jurisdiction to review on
appeal.
We agree with the Secretary that we do not have jurisdiction over LaPointe’s
challenge to the Veteran’s Court’s finding on the diagnostic code issue. Under 38
U.S.C. § 7292(d)(2), we may not review factual findings or the application of the law to
the facts in a Veterans Court decision, except to the extent that an appeal presents a
constitutional issue. As to the first issue, LaPointe challenges “the Secretary’s rewriting
of the rating criteria at 38 C.F.R. § 4.97 Diagnostic Code 6602.” LaPointe asserts that
the court misinterpreted “corticosteroid” as “inhalational anti-inflammatory medication.”
Relying on the plain language of the regulation, the Veterans Court accepted the
Board’s conclusion that the use of a corticosteroid inhaler does not warrant a higher
rating pursuant to DC 6602, and that the “systemic use of oral or parenteral, not inhaled,
corticosteroids” qualifies for a rating greater than thirty percent. In reaching that
conclusion, the Veterans Court merely applied the law to the facts of this case. As
such, we lack jurisdiction to review that decision. Moreover, to the extent LaPointe is
asking that we review or amend the criteria set forth in DC 6602, we lack authority to do
07-7016 -4-
so, absent a challenge to the constitutionality of the schedule. See Wanner v. Principi,
370 F.3d 1124, 1131 (Fed. Cir. 2004) (“The Secretary’s discretion over the schedule,
including procedures followed and content selected, is insulated from judicial review
with one recognized exception limited to constitutional challenges.”).
Next, LaPointe argues that 38 C.F.R § 3.655(b) is invalid in light of 38 U.S.C. §
5107. The regulations provide, inter alia, that “[w]hen entitlement . . . to a benefit cannot
be established or confirmed without a current VA examination . . . and a claimant,
without good cause, fails to report for such examination . . . a claim for increase . . .
shall be denied.” 38 C.F.R. § 3.655(a), (b). Section 5107 provides, in part, that “[t]he
Secretary shall consider all information and lay and medical evidence of record in a
case before the Secretary.” 38 U.S.C. § 5107(b). LaPointe fails to provide any
persuasive basis for concluding that § 3.655(b) is inconsistent with § 5107. Indeed, the
regulations mandate that the Secretary considers all evidence of record, while also
placing a burden on the claimant to report for necessary examinations. Those
provisions are not inconsistent with each other, particularly when “a claimant has the
responsibility to present and support a claim for benefits under laws administered by the
Secretary.” 38 U.S.C. § 5107(a).
Moreover, in this particular case, the Board denied LaPointe’s claim after
considering the evidence of record, which included LaPointe’s private medical records
and prescription labels for a corticosteroid inhaler. Board Decision, slip op. at 2. The
Board determined that that “evidence alone . . . [was] not sufficient for a higher rating,”
and implicitly found that the VA examination, which LaPointe failed to attend without
good cause, was necessary to determine whether LaPointe was entitled to increased
07-7016 -5-
benefits. Id. Thus, the Board invoked § 3.655(b) and ultimately rejected his claim.
Accordingly, even if we were to invalidate § 3.655(b), which we find no basis for doing,
LaPointe’s claim for increase would nonetheless have been denied in light of the
insufficient evidence he presented to the Board in support of his claim, a matter that we
are not empowered to review.
Finally, LaPointe contends that his due process rights were violated because the
hearing was arranged to be held in New Hampshire, rather than in his home state of
Massachusetts. We construe this assertion liberally, as does LaPointe, as a
constitutional argument. LaPointe relies on 38 C.F.R. § 3.103(e) and 38 C.F.R. §
20.904(a) in support of his argument. Those provisions, however, do not support his
position. Neither section mandates that a hearing must be arranged in the claimant’s
home state in order to comply with the requirements of due process. Instead, §
3.103(e) merely provides that “claimants are entitled to representation of their choice at
every stage in the prosecution of a claim.” LaPointe fails to establish that he had been
denied that right. Moreover, we conclude that LaPointe’s assertion that his
constitutional right to due process was violated by holding a hearing in New Hampshire
is without merit.
We have carefully considered the additional arguments raised in LaPointe’s brief
and are unable to find any errors pertaining to either the validity or an interpretation of a
rule of law, statute, or regulation. Accordingly, we find LaPointe’s arguments regarding
constitutional due process and the validity of 38 C.F.R. § 3.655 to be without merit and
affirm the Veterans Court’s decision. We dismiss for lack of jurisdiction the remainder of
LaPointe’s appeal.
07-7016 -6-
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
07-7016
JAMES E. LAPOINTE,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
MAYER, Circuit Judge, dissenting.
The majority is correct that James E. LaPointe is not entitled to relief from the
United States Court of Appeals for Veterans Claims’ decision. However, I dissent from
its resolution of LaPointe’s “constitutional” challenges and his challenge to 38 C.F.R.
§ 3.655(b), because he raises no question that properly invokes our jurisdiction under
38 U.S.C. § 7292, and this makes any disposition on the merits advisory.
Beginning with the section 3.655(b) issue, even if cursorily, “the Board denied
LaPointe’s claim after considering the evidence of record.” Ante at 5. Moreover, both
the regional office (“RO”) and the Veterans Court considered the evidence of record in
denying his claim. LaPointe v. Nicholson, No. 03-2179, 2006 U.S. App. Vet. Claims
LEXIS 940, slip op. at 1-2 (Vet. App. Sept. 20, 2006). In reviewing the RO’s denial,
however, the board also purported to affirm the decision on an alternate ground, section
3.655(b). ∗ LaPointe then argued on appeal to the Veterans Court that section
∗
38 C.F.R. § 3.655(b) provides:
3.655(b)’s rule, mandating per se denial of a claim for increase when the claimant fails
to report for a scheduled medical exam, is invalid because it is inconsistent with 38
U.S.C. § 5107(b). ∗∗ The Veterans Court declined to hold section 3.655(b) invalid, and
unnecessarily affirmed the denial of benefits under that section too. LaPointe renewed
his section 3.655(b) argument on appeal to us. The problem with the invalidity
argument insofar as our jurisdiction is concerned, however, is that even if we were to
invalidate section 3.655(b), he has already received the only relief to which he would be
entitled—a determination of his claim based on the evidence of record. Therefore, the
validity of section 3.655(b) is not before us.
Because the majority nevertheless chooses to issue an advisory ruling on the
validity of section 3.655(b), I am compelled to set out my view as well. To begin with,
section 3.655(b) is internally inconsistent. After a veteran fails to appear for a medical
examination scheduled in conjunction with “an original compensation claim,” the claim is
still “rated based on the evidence of record.” But, with respect to “any other original
claim, a reopened claim . . . , or a claim for increase, the claim [is] denied.” Id. Even if
this inconsistency were somehow justified, the disparate treatment of other original
When a claimant fails to report for an examination scheduled in
conjunction with an original compensation claim, the claim shall be rated
based on the evidence of record. When the examination was scheduled
in conjunction with any other original claim, a reopened claim for a benefit
which was previously disallowed, or a claim for increase, the claim shall
be denied.
∗∗
38 U.S.C. § 5107(b) provides in pertinent part:
The Secretary shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to benefits under
laws administered by the Secretary.
07-7016 2
claims, reopened claims, and claims for increase is flatly inconsistent with 38 U.S.C.
§ 5107(b)’s requirement that the “Secretary shall consider all information and lay and
medical evidence of record in a case . . . with respect to benefits.” See Kelly v.
Nicholson, 463 F.3d 1349, 1354 (Fed. Cir. 2006). In simple terms, the command that
the secretary shall decide claims for benefits after considering all evidence of record
plainly does not admit of per se rules providing for the denial of claims without
considering that evidence.
The incompatibility of section 3.655(b) with 38 U.S.C. § 5107(b) necessarily
requires its invalidation, but there is more. Section 3.655(b) is inconsistent with the
Department of Veterans Affairs (“VA”) own regulations. 38 C.F.R. § 3.103(a) provides:
“[I]t is the obligation of VA . . . to render a decision which grants every benefit that can
be supported in law while protecting the interests of the Government.” The per se rule,
however, ensures that some worthy veterans are summarily and improperly denied
benefits.
Section 3.655(b) is not triggered until after the VA has applied 38 C.F.R.
§ 3.655(a). ∗∗∗ Despite its best efforts, the VA will occasionally err in its application of
section 3.655(a). In other words, it will sometimes erroneously find that a claimant
neither met his evidentiary burden for establishing entitlement to benefits, nor showed
good cause for failing to appear at the consequently ordered VA medical exam. Under
∗∗∗
38 C.F.R. § 3.655(a) provides in pertinent part:
When entitlement or continued entitlement to a benefit cannot be
established or confirmed without a current VA examination or
reexamination and a claimant, without good cause, fails to report for such
examination, or reexamination, action shall be taken in accordance with
paragraph (b) or (c) of this section as appropriate.
07-7016 3
the per se rule, the first requirement necessary to trigger application of section
3.655(b)—failure to establish entitlement to benefits—will then, as here, receive little or
no review by the board, the Veterans Court, or both.
In contrast, the undeniable wisdom of the rule under section 3.655(b) as applied
to original compensation claims is that it ensures robust review within the VA and at the
Veterans Court of both requirements under section 3.655(a) necessary to trigger
application of section 3.655(b). In that manner, the VA better guarantees that it properly
carries out one of its most important functions, “grant[ing] every benefit that can be
supported in law.” 38 C.F.R. § 3.103(a). Moreover, the current rule as applied to
original compensation claims more appropriately provides for an allocation of the risk of
error consistent with Congress’ intent for the veterans benefits scheme. See Cook v.
Principi, 318 F.3d 1334, 1355-57 (Fed. Cir. 2002) (en banc) (Gajarsa, J., dissenting);
Forshey v. Principi, 284 F.3d 1335, 1363-65 (Fed. Cir. 2002) (en banc) (Mayer, C.J.,
dissenting). Accordingly, in view of the paternalistic, user-friendly system Congress
created, section 3.655(b)’s rule as applied to original compensation claims must also be
applied to other original claims, reopened claims, and claims for increase.
With respect to LaPointe’s “constitutional” arguments, liberally construing his pro
se brief as we are of course obligated to do, he does not raise a due process challenge.
For the majority to nevertheless render a constitutional holding is imprudent and
advisory. Indeed, based on the record before us, there is no indication that LaPointe
advanced his “due process” arguments before the VA or the Veterans Court.
Accordingly, Forshey, 284 F.3d at 1351-52, precludes our exercise of jurisdiction over
them now.
07-7016 4
With respect to the substance of LaPointe’s “constitutional” arguments, tellingly
the majority does not explain what makes them constitutional in nature. The reason for
this is simple enough: no matter how liberally his petition is construed, it does not in fact
raise a constitutional challenge. LaPointe complains only that he was deprived of
protections afforded by 38 C.F.R. §§ 3.103(c) and 3.103(e). His section 3.103(c)
argument is that, “the notice of the right to a hearing which limited [me] to a hearing in
[New Hampshire] was more restrictive than the law at 38 C.F.R. § 3.103(c)(1) allowing
for a hearing at the office nearest the claimant’s home.” His section 3.103(e) argument
merely states his belief that adjudication of his claim in New Hampshire deprived him of
his regulation-based rights under that section. Nowhere in these allegations is there a
basis from which to infer an argument that sections 3.103(c) or 3.103(e) are somehow
inconsistent with the Fifth Amendment or any other constitutional provisions.
A veteran’s “characterization of [a] question as constitutional in nature does not
confer upon us jurisdiction that we otherwise lack.” Helfer v. West, 174 F.3d 1332, 1335
(Fed. Cir. 1999). Moreover, the majority’s gratuitous framing of LaPointe’s challenge as
constitutional conflicts with the doctrine that courts must strive to avoid unnecessarily
reaching constitutional issues. See, e.g., NLRB v. Catholic Bishop of Chi., 440 U.S.
490, 500-01 (1979) (noting that courts are required to choose any reasonable
construction of a statute that would eliminate the need to confront a contested
constitutional issue); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)
(Brandeis, J., concurring); SRI Int'l v. Matsushita Elec. Corp., 775 F.2d 1107, 1126,
(Fed. Cir. 1985) (en banc) (additional views of Markey, C.J., and Newman, J.). I would
dismiss LaPointe’s appeal for lack of jurisdiction.
07-7016 5