Cormier v. McDonough

Case: 21-1170 Document: 37 Page: 1 Filed: 06/29/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ARTHUR P. CORMIER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1170
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-5151, Judge Joseph L. Falvey
Jr.
______________________
Decided: June 29, 2021
______________________
MARK DELPHIN, Delphin Law Office, Lake Charles, LA,
for claimant-appellant.
KYLE SHANE BECKRICH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ROBERT EDWARD KIRSCHMAN, JR.,
LOREN MISHA PREHEIM; BRIAN D. GRIFFIN, JULIE HONAN,
Case: 21-1170 Document: 37 Page: 2 Filed: 06/29/2021
2 CORMIER v. MCDONOUGH
Office of General Counsel, United States Department of
Veterans Affairs, Washington DC.
______________________
Before MOORE, Chief Judge, SCHALL and O’MALLEY,
Circuit Judges.
SCHALL, Circuit Judge.
DECISION
Arthur P. Cormier appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) in Cormier v. Wilkie, No. 19-5151 (Vet. App. Jan.
13, 2020), J.A. 1. In its decision, the Veterans Court af-
firmed the June 27, 2019 decision of the Board of Veterans’
Appeals (“Board”) that denied Mr. Cormier benefits for
myelodysplastic syndrome (“MDS”), also claimed as leuke-
mia, from exposure to herbicides. Id. 1 For the reasons
stated below, we affirm.
DISCUSSION
I.
The pertinent facts are set forth in the decision of the
Veterans Court. Mr. Cormier is a Navy veteran. He served
on active duty from 1965 until 1969. J.A. 1. During ser-
vice, his ship was anchored at Cam Rahm Bay in Vietnam,
and he took occasional trips ashore. Id. Because he was
present on land and in the waters of Vietnam, he is pre-
sumed to have been exposed to Agent Orange. Id. at 1–2.
In March 2018, Mr. Cormier filed a claim with the De-
partment of Veterans Affairs (“VA”) for benefits based on
1 MDS is “any of a group of related bone marrow dis-
orders of varying duration preceding the development of
overt acute myelogenous leukemia.” J.A. 2 (quoting Dor-
land’s Illustrated Medical Dictionary 1840 (32d ed. 2012)).
Case: 21-1170 Document: 37 Page: 3 Filed: 06/29/2021
CORMIER v. MCDONOUGH 3
“leukemia due to Agent Orange.” J.A. 2 (quoting J.A. 85).
In May 2018, Brannon Sims, a VA nurse practitioner, di-
agnosed Mr. Cormier with MDS. Id. Mr. Sims stated that
Mr. Cormier had been diagnosed with leukemia in January
2018 and that his condition was active and required chem-
otherapy. Id.
In August 2018, Mr. Cormier submitted a medical opin-
ion from his private physician, Dr. Christopher Snead. Dr.
Snead stated that Mr. Cormier had been diagnosed with
MDS. Id.; J.A. 31.
In September 2018, the VA obtained another examina-
tion from Mr. Sims. Addressing MDS, Mr. Sims stated that
Mr. Cormier’s condition was “at least as likely as not due
to the Agent Orange exposure during [the] Vietnam War.”
J.A. 2 (quoting J.A. 56). As a rationale for his opinion, Mr.
Sims stated that “[t]here is evidence to support a connec-
tion between Agent Orange exposure and [MDS].” Id.
(quoting J.A. 56). In addition, Mr. Sims noted “documented
court cases of other [veterans] being granted service con-
nection for MDS.” Id. (quoting J.A. 56). In making this
statement, Mr. Sims referred to an article provided by Mr.
Cormier titled “Agent Orange, United States Military Vet-
erans, and [MDS]” (“AAMDS article”). Id.; J.A. 59–66.
That article notes a connection between MDS and veterans
who served in Vietnam. J.A. 2; see J.A. 62–63.
In November 2018, the VA regional office denied Mr.
Cormier’s claim, and after a Statement of the Case was is-
sued, Mr. Cormier appealed to the Board. J.A. 2–3. In con-
nection with his appeal, Mr. Cormier submitted a 2019
medical opinion of Dr. Andrew Dalovisio. Dr. Dalovisio
stated that Mr. Cormier was under his care for treatment
of MDS and that there was “a mounting body of evidence”
that Mr. Cormier’s previous exposure to Agent Orange
could have contributed to Mr. Cormier developing MDS.
J.A. 3 (quoting J.A. 30).
Case: 21-1170 Document: 37 Page: 4 Filed: 06/29/2021
4 CORMIER v. MCDONOUGH
In February 2019, the VA obtained an advisory medical
opinion from Dr. Martin Carroll, a VA attending physician.
In his opinion, Dr. Carroll stated that it was not more likely
“than otherwise” that Mr. Cormier’s MDS was “associated
with Agent Orange exposure.” J.A. 3; J.A. 29. Dr. Carroll
further stated that “[t]he epidemiologic data do not support
this association,” and “[t]here are no features of [Mr.
Cormier’s] disease that would make me think this is not
more likely a spontaneous case of MDS[,] which often de-
velops in individuals in this age group.” J.A. 3. Addressing
the AAMDS article, Dr. Carroll opined that the article was
“highly speculative and inappropriate.” Id. Dr. Carroll
stated that he did not find any evidence in the article that
objectively supported an association between Agent Or-
ange and MDS, and, he added, “decades of research by the
US military and the Veterans Administration have not
shown an association between Agent Orange and [MDS].”
J.A. 3; J.A. 29.
In its June 27, 2019 decision, the Board denied benefits
for MDS. First, the Board found that Mr. Cormier did not
have leukemia. J.A. 21. The Board acknowledged Mr.
Sims’s reference to an earlier leukemia diagnosis and an-
other medical record that noted the presence of B-cells (Mr.
Cormier was alleged to have B-cell leukemia). The Board
found, however, that these references were outweighed by
the rest of the medical evidence, which consistently noted
diagnoses of MDS and not leukemia. Id.
Second, the Board determined that “the preponderance
of the evidence is against a finding of a nexus between [Mr.
Cormier’s] service and his MDS, [including] exposure to
herbicides.” J.A. 26. The Board stated that Mr. Sims’s and
Dr. Dalovisio’s opinions were entitled to little probative
weight because they were not supported with proper ra-
tionales. J.A. 25. It found that Dr. Carroll’s advisory opin-
ion was most probative because it was “supported by well-
reasoned rationale, which included addressing the AAMDS
Case: 21-1170 Document: 37 Page: 5 Filed: 06/29/2021
CORMIER v. MCDONOUGH 5
article that [Mr. Cormier] proffered in support of his
claim.” J.A. 26.
Following the Board’s decision, Mr. Cormier appealed
to the Veterans Court. As noted, the court affirmed the
decision of the Board. In so doing, the court rejected Mr.
Cormier’s argument that the evidence either preponder-
ated in his favor or was evenly balanced. In the latter case,
the court would have been required to apply the benefit of
the doubt rule. J.A. 7. Under that rule “[w]hen there is an
approximate balance of positive and negative evidence re-
garding any issue material to the determination of a mat-
ter, the Secretary shall give the benefit of the doubt to the
claimant.” 38 U.S.C. § 5107(b). The court determined that
“because the Board properly found that the evidence pre-
ponderated against the veteran’s claim, the benefit of the
doubt rule was not for application.” J.A. 7. The Veterans
Court also rejected Mr. Cormier’s challenge to the Board’s
weighing of the evidence and its explanations with respect
thereto. J.A. 5–7.
Following the Veterans Court’s affirmance of the
Board’s decision, Mr. Cormier appealed. We have jurisdic-
tion pursuant to 38 U.S.C. § 7292.
II.
Our jurisdiction to review decisions of the Veterans
Court is limited. Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010). We have jurisdiction to consider only legal
issues raised by a Veterans Court decision, not “a challenge
to a factual determination” or “a challenge to a law or reg-
ulation as applied to the facts of a particular case,” except
to the extent that an appeal presents a constitutional issue.
38 U.S.C. § 7292(d)(1), (2).
III.
Mr. Cormier’s first argument on appeal is that both the
Board and the Veterans Court erred as a matter of law in
failing to apply the benefit of the doubt rule. Mr. Cormier
Case: 21-1170 Document: 37 Page: 6 Filed: 06/29/2021
6 CORMIER v. MCDONOUGH
states that the “crucial” error on the part of the Board and
the Veterans Court was their finding that the evidence pre-
ponderated in favor of the Secretary. Appellant’s Br. 9.
Mr. Cormier contends that, in fact, the evidence weighed
in his favor, or at least was in equipoise. See id. at 10–18.
What Mr. Cormier is asking us to do, however, is review
the findings of fact in this case or the application of law to
the facts. This is an argument clearly beyond our jurisdic-
tion.
Mr. Cormier’s second argument on appeal is that his
case should be remanded to the VA for the reception of ad-
ditional evidence because he did not receive the proper ben-
efit of the duty to assist. 2 According to Mr. Cormier, upon
receipt of the records from his treating doctors and the
AAMDS article, the VA “had an obligation to inform him
that other medical reports and studies were needed.” Ap-
pellant’s Br. 21. He then cites eight Board decisions per-
taining to other veterans that, he asserts, demonstrate that
the Board “knows” that MDS has a nexus with Agent Or-
ange. Id. at 24. Mr. Cormier argues that the VA’s duty to
assist required that it “give [him] any information that the
VA itself had in its possession” that was relied upon to
award benefits in these other cases. Id. The Secretary re-
sponds by citing nine Board decisions that denied service
connection for the same condition despite acknowledged
Agent Orange exposure. Appellee’s Br. 27–28. The Secre-
tary states that it “[t]hus, . . . is not the case that the
[B]oard always grants service connection for MDS when
there is evidence of exposure to Agent Orange.” Id. at 28.
2 The VA has a duty to assist veterans in developing
their claims under 38 U.S.C. § 5103A(a)(1) (“The Secretary
shall make reasonable efforts to assist a claimant in obtain-
ing evidence necessary to substantiate the claimant’s claim
for a benefit under a law administered by the Secretary.”).
Case: 21-1170 Document: 37 Page: 7 Filed: 06/29/2021
CORMIER v. MCDONOUGH 7
We have jurisdiction to review legal questions concern-
ing the scope of the VA’s duty to assist under 38 U.S.C.
§ 5103A. Beasley v. Shinseki, 709 F.3d 1154, 1157 (Fed.
Cir. 2013). We reject Mr. Cormier’s argument, however.
Section 5103A(a)(1) requires that the Secretary make “rea-
sonable efforts” to assist a claimant in obtaining evidence
necessary to substantiate his or her claim. In that regard,
contrary to Mr. Cormier’s assertions, it appears that the
VA notified Mr. Cormier of what was needed to substanti-
ate his claim and that he was given, and took advantage of,
multiple opportunities to submit supporting documents.
Moreover, “[t]he duty to assist is not boundless in its
scope.” Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir.
2010). Mr. Cormier cites no statutory, regulatory, or rule
of law basis for his argument that the VA must provide him
information, such as scientific data, pertaining to, or un-
derlying, Board decisions that granted benefits in other
veterans’ cases. Because MDS is not on the list for of dis-
eases for presumptive service connection based on Agent
Orange exposure, 38 U.S.C. § 1116, 38 C.F.R. § 3.309(e),
Mr. Cormier’s claim can only be analyzed under the fact-
intensive, case-by-case basis for direct service connection.
See Combee v. Brown, 34 F.3d 1039, 1043–44 (Fed. Cir.
1994). The eight decisions Mr. Cormier cites are not prec-
edential and are thus “binding only with regard to the spe-
cific case decided.” 38 C.F.R. § 20.1303. 3 Finally, to the
3 That is not to say that the Board may never con-
sider its decisions pertaining to other veterans. Section
20.1303 specifically provides that although “each case pre-
sented to the Board will be decided on the basis of the indi-
vidual facts of the case in light of applicable procedure and
substantive law,” “[p]rior decisions in other appeals may be
considered in a case to the extent that they reasonably re-
late to the case.” Though in this case there is no error that
we have the power to correct, we cannot help but note that
the Board has confronted at least 17 cases regarding
Case: 21-1170 Document: 37 Page: 8 Filed: 06/29/2021
8 CORMIER v. MCDONOUGH
extent Mr. Cormier’s argument could be construed as ask-
ing us to review the application of the law relating to the
duty to assist to the facts of his case, Mr. Cormier is pre-
senting an argument clearly beyond our jurisdiction.
Lastly, focusing upon the opinion of Dr. Carroll, Mr.
Cormier argues that the Federal Circuit should abandon
the “presumption of competency” attributed to VA medical
examiners. See Mathis v. McDonald, 834 F.3d 1347 (Fed.
Cir. 2016); Mathis v. McDonald, 643 F. App’x 968 (Fed. Cir.
2016). However, Mr. Cormier did not raise a challenge to
Dr. Carroll’s competency before the Board, and the Veter-
ans Court decision did not address the issue. We therefore
will not consider it. See Francway v. Wilkie, 940 F.3d 1304,
1307–09 (Fed. Cir. 2019); Emenaker v. Peake, 551 F.3d
1332, 1337 (Fed. Cir. 2008); see also Fears v. Wilkie, 843 F.
App’x 256, 262 (Fed. Cir. 2021) (rejecting the argument
that a veteran who was not represented by counsel before
the Board should not be required to have raised a compe-
tency challenge before the Board).
We have considered Mr. Cormier’s additional argu-
ments and have found them to be without merit.
CONCLUSION
For the reasons set forth above, we affirm the decision
of the Veterans Court.
AFFIRMED
COSTS
No costs.
whether Agent Orange exposure causes MDS and in those
cases has split down the middle.