Pathak v. Shinseki. , 412 F. App'x 301 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
KIERON V. PATHAK,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7029
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 09-788, Judge Alan G.
Lance, Sr.
___________________________
Decided: March 10, 2011
___________________________
KIERON V. PATHAK, of Jacksonville, Florida, pro se.
NICHOLAS JABBOUR, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
PATHAK v. DVA 2
F. HOCKEY, Assistant Director. Of counsel on the brief
were MICHAEL J. TIMINSKI, Deputy Assistant General
Counsel, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before BRYSON, MAYER, and DYK, Circuit Judges.
PER CURIAM.
DECISION
Kieron Pathak seeks review of a decision of the Court
of Appeals for Veterans Claims (“the Veterans Court”),
which affirmed a decision by the Board of Veterans’
Appeals holding that he was not entitled to an earlier
effective date for a grant of service connection for Crohn’s
disease. We affirm.
BACKGROUND
Mr. Pathak served on active duty in the U.S. Navy be-
tween 1976 and 1981. In 1984, he was granted service
connection for hemorrhoids. In 1987, he submitted a
claim for an increased rating for hemorrhoids, which was
denied. Mr. Pathak was diagnosed with Crohn’s disease
by a private physician in 1992. In 2003, the Department
of Veterans Affairs (“DVA”) granted him service connec-
tion for Crohn’s disease and increased his combined
disability rating. The increase was made effective as of
2003.
Mr. Pathak filed a Notice of Disagreement, arguing
that the effective date of his service connection for
Crohn’s disease should be 1987. The Board denied his
claim. After examining the record, the Board found that
Mr. Pathak had not filed a formal or informal claim to
3 PATHAK v. DVA
service connection for Crohn’s disease prior to 2003. The
Board then construed Mr. Pathak’s Notice of Disagree-
ment as an allegation of clear and unmistakable error
(“CUE”) in the regional office’s 1987 decision for its al-
leged failure to identify the symptoms of Crohn’s disease.
The Board referred that issue to the regional office for
consideration. The regional office subsequently denied
the claim for an earlier effective date, and the Board,
after analyzing the 1987 rating decision, found no mani-
fest error that would justify a CUE-based collateral
attack. The Veterans Court affirmed.
DISCUSSION
This court has jurisdiction to review decisions by the
Veterans Court with respect to a “challenge to the validity
of any statute or regulation or any interpretation thereof.”
38 U.S.C. § 7292(c). We lack jurisdiction to review factual
determinations or the application of law to fact, except to
the extent that a veteran’s appeal presents a constitu-
tional issue. Id. § 7292(d)(2).
Mr. Pathak raises two points on appeal. First, he ar-
gues that the 1987 rating decision contains CUE. Second,
he argues that the Veterans Court did not properly inter-
pret the “benefit of the doubt” rule. We address each in
turn.
1. With respect to the CUE claim, 38 U.S.C. § 5109A
authorizes the Secretary to revise an earlier, final deci-
sion if the decision is the product of a clear and unmis-
takable error. In order to satisfy that statutory standard,
the error must (1) be in the record as it existed when the
original rating decision was made, and (2) be outcome
determinative. See Cook v. Principi, 318 F.3d 1334, 1346
(Fed. Cir. 2002) (en banc).
PATHAK v. DVA 4
Addressing the first requirement, the Veterans Court
determined that Mr. Pathak’s receipt of service connec-
tion for Crohn’s disease in 2003 did not indicate that the
1987 rating decision was the product of a manifest error,
as the 1992 diagnosis of Crohn’s disease was not before
the regional office in 1987. For the same reason, Mr.
Pathak’s challenge to the adequacy of his 1981 discharge
physical examination does not support his claim that the
regional office’s failure to grant service connection for
Crohn’s disease in 1987 is the product of CUE. Because
the Secretary must determine whether CUE occurred
based on the record before the regional office at the time
the rating decision was made, the Veterans Court prop-
erly recognized that any allegation that the 1981 physical
examination was inadequate cannot support a CUE claim.
And we lack jurisdiction to review Mr. Pathak’s fact-based
assertions that his 1981 medical examination contained
medical errors and other deficiencies. 38 U.S.C. § 7292(c).
To the extent that the error Mr. Pathak asserts is a
breach of the Secretary’s duty to assist, the Veterans
Court correctly held that an allegation that the agency
breached its statutory duty to assist the veteran to de-
velop his claim cannot constitute CUE. Our en banc
decision in Cook explained that a breach of that duty does
not constitute CUE because the breach results in an
incomplete record, not an erroneous record. 318 F.3d at
1344.
2. As to the “benefit of the doubt” rule, the Veterans
Court held that rule inapplicable to Mr. Pathak’s claim
that the 1987 rating decision contains CUE. The “benefit
of the doubt” rule, codified at 38 U.S.C. § 5107(b) and
implemented by the Secretary at 38 C.F.R. § 3.102, re-
quires that any reasonable doubt as to service connection,
degree of disability, or any other point be resolved in favor
5 PATHAK v. DVA
of the veteran. The rule is triggered when the evidence is
balanced equally in favor of and against the veteran’s
claim. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed.
Cir. 2009). Here, neither the Board nor the regional office
weighed any facts or decided any factual questions
against Mr. Pathak. The Board, affirmed by the Veterans
Court, determined that a veteran’s CUE claim is to be
analyzed on the record that was before the regional office
at the time the rating decision was made. The “benefit of
the doubt” rule therefore does not apply. We therefore
uphold the Veterans Court’s decision denying Mr.
Pathak’s claim to an earlier effective date for his service
connected condition.
No costs.
AFFIRMED