Jackson v. Shinseki , 526 F. App'x 947 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VERDELL JACKSON,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7179
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-4295, Judge Ronald M. Holda-
way.
______________________
Decided: June 10, 2013
______________________
VERDELL JACKSON, of Crosby, Texas, pro se.
MICHELLE R. MILBERG, Trial Attorney, United States
Department of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were STUART F. DELERY,
Principal Deputy Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and SCOTT D. AUSTIN, Assistant
Director.
______________________
2 VERDELL JACKSON v. SHINSEKI
Before NEWMAN, CLEVENGER, and WALLACH, Circuit
Judges.
NEWMAN, Circuit Judge.
Navy veteran Verdell Jackson appeals a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the denial of her disability
claim for hysterectomy caused by severe uterine prolapse.
The Board of Veterans Appeals (“Board”) found that the
appellant’s condition was not service connected, and
therefore not entitled, and the Veterans Court affirmed. 1
We affirm the judgment.
BACKGROUND
The appellant served in the Navy from 1982 to 1998.
In 1989, she gave birth to a son while in service. No
serious medical complications were discovered in postpar-
tum service medical exams, despite the fact that the baby
was born vaginally weighing over 9 pounds, and the labor
was undisputedly difficult.
The appellant was honorably discharged on December
31, 1998. Less than one year later, she was diagnosed by
a private physician with a “severely retroverted uterus
and mild uterine prolapse.” Jackson Encl. #3 at 2. The
appellant received treatment from 1999 to 2001, and, in
May 2001, underwent a total hysterectomy.
In July 2001, the appellant applied to the Department
of Veterans Affairs (“VA”) for service connected disability
in view of her hysterectomy, post-uterine prolapse. The
appellant stated that her uterine prolapse was attributa-
ble to complications from the childbirth in 1989, citing
medical texts which indicated that uterine prolapse can
be associated with childbirth.
1 Jackson v. Shinseki, No. 10-4295 (Vet. App. Apr.
11, 2012) (“Vet. Ct. Op.”) aff’g Jackson v. Shinseki, No. 3–
29 466 (Bd. Vet. App. Oct. 7, 2010) (“Bd. Op.”).
VERDELL JACKSON v. SHINSEKI 3
The Board denied the appellant’s claim, relying on
three medical opinions stating that although uterine
prolapse can be caused by childbirth, the appellant’s
uterine prolapse was “less than likely” incurred during
active duty given her non-diagnosis for 10 years post
childbirth. Bd. Op. at 9. None of the examiners could
state with certainty that the appellant’s childbirth was a
factor in her post-service uterine prolapse. Id. The
examiners found that the passage of time with no diagno-
sis suggested no service connection. Id. The Board
adopted the opinions of the examiners, and the Veterans
Court concluded that the Board’s findings were not clearly
erroneous. Vet. Ct. Op. at 8.
DISCUSSION
Our review of decisions of the Veterans Court is cir-
cumscribed by statute. We review decisions of the court
only as to the “validity” or “interpretation” of any statute
or regulation, 38 U.S.C. §7292(a), and absent a constitu-
tional issue, we “may not review (A) a challenge to a
factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.” 38
U.S.C. §7292(d)(2).
The appellant contends that the Veterans Court and
Board misinterpreted the service connection statutes and
regulations entitling her to a presumption of service
connection. Jackson Br. 1–2. (“I was diagnosed within
the one year presumptive period”). The appellant also
states that the Board misinterpreted the “benefit of the
doubt” rule, codified in 38 U.S.C. §5107(b), because there
was an approximate balance of positive and negative
evidence before the Board, and yet it “never evaluated or
addressed” the evidence favorable to the appellant’s
claim. Jackson Br. 2.
The government contends that no statutory question
is raised, and this court cannot review the weight of
evidence pertaining to “whether a connection exists
between the birth of the appellant’s son and uterine
prolapse.” Gov’t Br. 11. The government states that the
4 VERDELL JACKSON v. SHINSEKI
benefit of the doubt rule is “inapplicable” because the
Board found that there was a preponderance of evidence
finding no service connection. Id. 12.
In considering these arguments, we are mindful that
the appellant represents herself pro se, requiring “a
sympathetic reading to the veteran’s filings by ‘determin-
ing all potential claims raised by the evidence, applying
all relevant laws and regulations.’” Szemraj v. Principi,
357 F.3d 1370, 1373 (Fed. Cir. 2004) (quoting Roberson v.
Principi, 251 F.3d 1378 (Fed. Cir. 2001)).
I.
The appellant’s challenge to the VA’s application of
the “benefit of the doubt” rule is not within the proper
scope of our review under the facts presented. Although
the appellant submitted lay testimony and excerpts of
medical treatises in support of service connection, three
medical examiners reviewed the appellant’s case and
concluded that her uterine prolapse was not incurred in
service. The Board found the opinions of the examiners
more probative, and concluded that “the preponderance of
the evidence is against the Veteran’s claim.” Bd. Op. at
11. Because the Board found preponderance against the
appellant, we cannot review that finding. See Fagan v.
Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (benefit of
the doubt rule has “no application where the Board de-
termines that the preponderance of the evidence weighs
against the veteran’s claim.”).
The appellant’s challenge to the denial of service con-
nection is another matter. We disagree with the govern-
ment that the appellant has asked this court to reweigh
evidence. To the contrary, the appellant’s brief states
that she is entitled to a presumption of service connection
based on the undisputed fact that the appellant’s uterine
prolapse was discovered within one year of separation.
This argument raises a question within our purview. See
Skoczen v. Shinseki, 564 F.3d 1319, 1322 (Fed. Cir. 2009)
(“In cases where the material facts are not in dispute and
the adoption of a particular legal standard would dictate
VERDELL JACKSON v. SHINSEKI 5
the outcome of a veteran’s claim, we treat the application
of law to undisputed fact as a question of law.”). The
appellant’s argument is not facially implausible. See 38
U.S.C. §1112(a)(1) (establishing presumption of service
connection for “a chronic disease becoming manifest to a
degree of 10 percent or more within one year from the
date of separation”); 3.307(a)(3) (same)).
II.
The statutes and regulations pertaining to disability
“service connection” can be difficult to decipher. This
court recently addressed the scheme at length in Walker
v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
In general, a veteran’s right to disability compensa-
tion is established in title 38 of the U.S. Code. The basic
entitlement states that the United States will pay veter-
ans for any disability resulting from personal injury
“contracted” or “aggravated” while in the active military,
so long as the disability is not a result of the veteran’s
willful misconduct. 38 U.S.C. §1110. The Secretary of
Veterans Affairs has promulgated regulations—which the
appellant does not challenge—stating that the veteran
must establish the entitlement in one of two ways: (1) by
“affirmatively showing inception or aggravation during
service”; or (2) “through the application of statutory
presumptions.” 38 C.F.R. §3.303(a). The appellant’s
arguments pertain to the second approach. Jackson Br.
1–2.
The statutory presumptions of service connection are
set forth in 38 U.S.C. §1112, which provides for a pre-
sumption for “chronic disease[s] becoming manifest to a
degree of 10 percent or more within one year from the
date of separation from such service.” 2 The Secretary
implements this presumption through a triumvirate of
regulations, namely 38 C.F.R. §§3.303(b), 3.307(a)(3),
2 Section 1112 presumptions are expressly made
rebuttable under 38 C.F.R. §1113. See §1112.
6 VERDELL JACKSON v. SHINSEKI
3.309(a). See Walker, 708 F.3d at 1338 (finding a “clear
linkage” between §3.307(a) and §3.309(a) to §3.303).
Section 3.303(b) states that a presumption of service
connection exists for post-service manifestations of
“chronic disease” if the chronicity of the disease was
“shown as such in service (or within the presumptive
period under §3.307),” or, if there is “continuity of symp-
tomatology” after service. The presumptive period for
diagnosis of a chronic disease under §3.307 is 1 year from
separation from service. The last component is the defini-
tion of “chronic disease,” which is found in §3.309(a).
Section 3.309 enumerates several specific diseases that
are eligible “chronic diseases” under the scheme.
Because the appellant states that she was diagnosed
“within the one year presumptive period,” we interpret
the appellant’s claim to be that her hysterectomy, post-
uterine prolapse, qualifies as a “chronic disease” under
§1112 and §3.303(b). 3
III.
The term “chronic disease” is statutorily defined in 38
U.S.C. §1101, which identifies several chronic diseases by
name and permits the addition of “such other chronic
diseases as the Secretary may add . . . .” The statute
identifies such diseases as arthritis, diabetes mellitus,
and psychosis, among others. The Secretary’s list is found
in regulation 38 C.F.R. §3.309(a), and is substantially
similar.
Hysterectomy and uterine prolapse are not listed in
either §1101 or regulation §3.309. The appellant must
argue that although these provisions provide lists, the
lists are not exhaustive and other diseases may qualify as
“chronic.” We addressed that very issue in Walker.
3 Although the government has failed to address
this issue, we see no evidence or argument that the appel-
lant waived it, or is otherwise precluded from raising it
now.
VERDELL JACKSON v. SHINSEKI 7
In Walker, the veteran argued that bilateral hearing
loss, although not enumerated in §1101 or §3.309, was
medically “chronic” and therefore qualified as a “chronic
disease.” 708 F.3d at 1336. The Secretary countered that
only diseases expressly listed in §3.309(a) are eligible for
presumptions under §3.303(b). Id. at 1337. After review-
ing the statutory scheme at length, we concluded that the
Secretary’s interpretation was not invalid. Id. at 1338.
We held that
Even though §3.303(b) does not contain a specific
cross reference to §3.309(a), we think a harmoni-
ous 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).
For the reasons explained above, we conclude that
properly interpreted, and consistent with the Sec-
retary’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 specific chronic diseases
listed in §3.309(a).
708 F.3d at 1338.
The appellant’s argument here is precisely the one
made and rejected in Walker. The one year presumptive
period set forth in §3.307(a) does not apply to the appel-
lant’s hysterectomy or uterine prolapse because neither of
those maladies is a “chronic disease” listed in §3.309.
Thus in order to prevail, the uterine prolapse needed to be
“contracted” or “aggravated” while in the active military.
38 U.S.C. §1110. The Board’s finding to the contrary is
beyond our jurisdiction to review.
We have considered the appellant’s remaining argu-
ments and find them unpersuasive.
AFFIRMED