Fernandez v. Peake , 299 F. App'x 973 ( 2008 )


Menu:
  •                       NOTE: This disposition is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2007-7270
    STEVEN P. FERNANDEZ,
    Claimant-Appellant,
    v.
    JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
    Respondent-Appellee.
    Darla J. Lilley, of Hughes Springs, Texas, for claimant-appellant.
    Hillary A. Stern, Senior Trial Attorney, Commercial Litigation Branch, Civil
    Division, United States Department of Justice, of Washington, DC, for respondent-
    appellee. With her on the brief were Gregory G. Katsas, Assistant Attorney General,
    Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel
    were David J. Barrans, Deputy Assistant General Counsel, and Y. Ken Lee, Attorney,
    Office of the General Counsel, United States Department of Veterans Affairs, of
    Washington, DC.
    Appealed from: United States Court of Appeals for Veterans Claims
    Judge Alan G. Lance, Sr.
    NOTE: This disposition is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2007-7270
    STEVEN P. FERNANDEZ,
    Claimant-Appellant,
    v.
    JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
    Respondent-Appellee.
    Appeal from the United States Court of Appeals for Veterans Claims in 05-3279,
    Judge Alan G. Lance, Sr.
    ____________________________
    DECIDED: November 18, 2008
    ____________________________
    Before NEWMAN, PLAGER, and SCHALL, Circuit Judges.
    SCHALL, Circuit Judge.
    DECISION
    Steven P. Fernandez appeals the decision of the United States Court of Appeals
    for Veterans Claims (“Veterans Court”) which affirmed the Board of Veterans’ Appeals
    (“Board”) decision denying his motion for revision of a January 1986 Board decision on
    account of clear and unmistakable error (“CUE”). See Fernandez v. Nicholson, No. 05-
    3279, 
    2007 WL 1467215
    , at *1 (Ct. Vet. App. May 18, 2007). We affirm.
    DISCUSSION
    I.
    Mr. Fernandez is a veteran who served in the U.S. Navy from November 1972 to
    May 1974.    Fernandez, 
    2007 WL 1467215
    , at *1.          In 1984, Mr. Fernandez sought
    service connection for a back condition which allegedly developed from carrying heavy
    sheets of plywood. 
    Id.
     The Board denied his claim in a January 1986 decision after
    reviewing, inter alia, the following evidence: (1) Mr. Fernandez’s complaint of low back
    pain after a surfing incident in March 1974; (2) an in-service examination in March 1974
    revealing moderate limitation of range of motion and resulting in a diagnosis of acute
    back strain; (3) a separation examination in May 1974 characterizing as normal Mr.
    Fernandez’s spine and other musculoskeletal areas; (4) a statement by one of Mr.
    Fernandez’s shipmates that Mr. Fernandez suffered a back injury during a shipboard
    construction project; and (5) a private medical opinion from Dr. Robert Badke which
    linked Mr. Fernandez’s in-service injury to his current low back disorder. 
    Id.
    In November 2003, Mr. Fernandez filed a motion for revision on the basis of
    CUE. 
    Id.
     Mr. Fernandez argued that CUE was present in the 1986 Board decision
    because the Board had failed to apply 
    38 C.F.R. § 3.303
    (d) (1985).               
    Id.
       Section
    3.303(d) permits direct service connection even where presumptive or chronicity
    elements set forth in that regulation are not met. 
    33 C.F.R. § 3.303
    (d) (2008). The
    Board denied the motion in April 2004, and Mr. Fernandez appealed. Fernandez, 
    2007 WL 1467215
    , at *1. The Veterans Court vacated the April 2004 Board decision and
    remanded to the Board so that the Board could consider whether the January 1986
    Board decision adequately considered § 3.303(d).          Id.   On remand, the Board
    2007-7270                                   2
    determined that there was no CUE in the 1986 Board decision because its reference to
    § 3.303 generally supported a finding that the Board had adequately considered
    § 3.303(d). Id. Mr. Fernandez then appealed again to the Veterans Court. Id. This
    time, the court held that Mr. Fernandez had failed to show that the 1986 Board decision
    “undebatably failed to apply § 3.303(d)” or that “any analysis under § 3.303(d) would
    have manifestly changed the outcome of the January 1986 Board decision.” Id. at *3.
    II.
    Pursuant to 
    38 U.S.C. § 7292
    (c), we have exclusive, but limited jurisdiction to
    review decisions of the Veterans Court. Boggs v. Peake, 
    520 F.3d 1330
    , 1333 (Fed.
    Cir. 2008). We specifically possess “exclusive jurisdiction to review and decide any
    challenge to the validity of any statute or regulation or any interpretation thereof . . . and
    to interpret constitutional and statutory provisions, to the extent presented and
    necessary to a decision.” 
    38 U.S.C. § 7292
    (c) (2006). Also within our jurisdiction is
    review of decisions of the Veterans Court on issues of law. Jordan v. Nicholson, 
    401 F.3d 1296
    , 1297 (Fed. Cir. 2005). However, unless a constitutional issue is present, we
    may not review challenges to factual determinations or to law or regulation as applied to
    the facts of a particular case. 
    38 U.S.C. § 7292
    (d)(2) (2006).
    In considering any issues of law properly raised by Mr. Fernandez’s appeal, we
    review de novo the decision of the Veterans Court. Boggs, 
    520 F.3d at 1334
    . We set
    aside the Veterans Court’s conclusions on an issue of law if they are found to be “(a)
    arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (b)
    contrary to constitutional right, power, privilege, or immunity; (c) in excess of statutory
    2007-7270                                     3
    jurisdiction, authority, or limitations, or in violation of a statutory right; or (d) without
    observance of procedure required by law.” 
    38 U.S.C. § 7292
    (d)(1) (2006).
    “A decision by the Board is subject to revision on the grounds of clear and
    unmistakable error.” 
    38 U.S.C. § 7111
     (2006). According to our precedent and that of
    the Veterans Court, “in order to constitute CUE, the alleged error must have been
    outcome determinative; second, the error must have been based upon the evidence of
    record at the time of the original decision.” Cook v. Principi, 
    318 F.3d 1334
    , 1344 (Fed.
    Cir. 2002) (en banc) (citations omitted). “Review for clear and unmistakable error in a
    prior Board decision must be based on the record and the law that existed when that
    decision was made.” 
    38 C.F.R. § 20.1403
    (b)(1) (2008).
    On appeal, Mr. Fernandez raises two contentions.          First, he argues that the
    Board committed CUE in 1986 by failing to apply 
    38 C.F.R. § 3.303
    (d). Mr. Fernandez
    notes that the 1986 Board decision does not mention subsection (d) specifically. He
    avers that the evidence before the Board supported service connection for his back
    condition and that the Board’s failure to apply § 3.303(d) led the Board to find no nexus
    between his in-service back injury and chronic low back disorder. Second, he contends
    that the Board also committed CUE when the Board dismissed the sole medical nexus
    opinion in the record and adopted its own unsubstantiated medical conclusion instead.
    He argues that the Board ignored the evidence of service connection in the record and
    impermissibly relied on its own medical expertise.
    III.
    We see no error in the decision of the Veterans Court in this case. First, we note
    that nowhere does the 1986 Board decision indicate that the Board did not apply
    2007-7270                                    4
    § 3.303(d). To the contrary, the Board cited to § 3.303(b) in the law section of its
    decision and generally in its conclusion of law. See In re Fernandez, No. 85-31 127
    (Bd. Vet. App. Jan. 22, 1986). The absence of a citation specifically to subsection (d) of
    § 3.303 in its 1986 decision does not constitute CUE where, as here, the Board cited to
    § 3.303 and reviewed all the evidence of record.
    Mr. Fernandez’s second argument on appeal—that it was CUE for the Board to
    rely on its own medical expertise—is also without merit. While it is not entirely clear
    from the record that the Board in 1986 relied on its own medical expertise, see id., we
    will assume it did so. It was not CUE in 1986 for the Board, which had a physician on it,
    to rely on its own medical expertise. The Board was not required to base its decision on
    independent medical evidence until the Veterans Court rendered its 1991 decision in
    Colvin v. Derwinski, 
    1 Vet. App. 171
     (Ct. Vet. App. 1991), overruled on other grounds by
    Hodge v. West, 
    155 F.3d 1356
     (Fed. Cir. 1998). CUE “does not include the otherwise
    correct application of a statute or regulation where, subsequent to the Board decision
    challenged, there has been a change in the interpretation of the statute or regulation.”
    
    38 C.F.R. § 20.1403
    (e) (2008). Prior to 1991, the Board routinely relied upon its own
    medical expertise. See Bowyer v. Brown, 
    7 Vet. App. 549
    , 552 (Ct. Vet. App. 1995)
    (“The [Board’s] use of its own medical judgment provided by the medical member of the
    panel was common practice prior to the Colvin decision.”). Mr. Fernandez has failed to
    demonstrate that the Board committed CUE in applying its own medical expertise.
    For the foregoing reasons, we affirm the decision of the Veterans Court.
    No costs.
    2007-7270                                   5
    

Document Info

Docket Number: 2007-7270

Citation Numbers: 299 F. App'x 973

Judges: Newman, Plager, Schall

Filed Date: 11/18/2008

Precedential Status: Non-Precedential

Modified Date: 10/19/2024