George Prewitt v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GEORGE D. PREWITT, JR.,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2013-7005
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-0792, Judge Alan G. Lance, Sr.
______________________
Decided: March 18, 2013
______________________
GEORGE D. PREWITT, JR., of Greenville, Mississippi,
pro se.
MELISSA M. DEVINE, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were STUART F. DELERY, Principal
Deputy Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
2 GEORGE PREWITT v. SHINSEKI
Of counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and JOSHUA P. MAYER, Attor-
ney, United States Department of Veterans Affairs, of
Washington, DC.
______________________
Before O'MALLEY, BRYSON, and REYNA, Circuit Judges.
BRYSON, Circuit Judge.
George D. Prewitt appeals from the judgment of the
Court of Appeals for Veterans Claims (“CAVC”), which
rejected certain of his claims for benefits and remanded
others to the Board of Veterans’ Appeals. Because the
Board’s decision on one of Mr. Prewitt’s claims may have
been based on improper treatment of Mr. Prewitt’s lay
evidence, we reverse and remand for further proceedings
on that claim. We otherwise affirm.
I
Mr. Prewitt served on active duty in the United States
Army from March 1968 to March 1970. While in combat,
he suffered a gunshot wound to the neck. The Depart-
ment of Veterans Affairs (“DVA”) granted him a 30 per-
cent disability rating for the residual effects of the
gunshot wound, including an injury to muscle group I and
a spinal accessory nerve, excision of a neuroma, limitation
of motion of the left shoulder, and atrophy of the trapezius
muscle. In November 1976 and again in January 1980,
Mr. Prewitt requested increased compensation, but both
times the DVA determined his disability had not become
more severe. Then, in June of 1980, the DVA increased
Mr. Prewitt’s disability rating from the gunshot wound to
40 percent due to his demonstrated limitation of motion.
In addition, the DVA granted a 10 percent rating for a
service-related tender neck scar and injury to cranial
nerve V. In September 2002, Mr. Prewitt again requested
an increased rating for the gunshot wound. He under-
went a DVA examination in February 2003, and the DVA
GEORGE PREWITT v. SHINSEKI 3
granted him a 20 percent rating for impairment of cranial
nerve XI.
In February 2005, Mr. Prewitt received medical atten-
tion for atrial fibrillation. DVA physicians diagnosed him
with hyperthyroidism and recommended treatment. Mr.
Prewitt then requested that the DVA grant service con-
nection for hyperthyroidism and atrial fibrillation second-
ary to hyperthyroidism. He also sought service
connection for tinnitus, hypertension, and alleged injuries
to cranial nerves II, III, and X; in addition, he claimed
that he had “never received any compensation for injury
to the fifth cranial nerve.” Finally, Mr. Prewitt sought a
total disability rating based on individual unemployabil-
ity, but he asked that that claim be held in abeyance
while he attempted to return to work.
Mr. Prewitt underwent a DVA medical examination in
October 2005 that found “no evidence for injury to cranial
nerves 2 and 3,” and “no clinical evidence for injury” to
cranial nerve X. The examining DVA physician also
found that Mr. Prewitt’s already diagnosed injuries to
cranial nerves V and XI were “likely to be static since his
neurological exam in 1980.” Following another examina-
tion, the examining physician concluded that Mr.
Prewitt’s hyperthyroidism was not caused by the gunshot
wound he sustained in service and that, although an
abnormal result on a thyroid test administered in 2001
should have led to an earlier diagnosis of Mr. Prewitt’s
hyperthyroid condition, the delay in diagnosis did not
result in any permanent disability.
The DVA then issued a decision in December 2005
denying service connection for tinnitus, atrial fibrillation,
hyperthyroidism, injury to cranial nerves II, III, and X,
and glomerulonephritis with arterial hypertension. Mr.
Prewitt did not appear for a scheduled DVA medical
examination in May 2007, claiming lack of transportation,
but he stated in June of that year that the examination
4 GEORGE PREWITT v. SHINSEKI
was not necessary because it “would not be probative of
whether there had been a clear and unmistakable error”
in the DVA’s 1970 evaluation. In March 2008 the DVA
denied service connection for hypertension as well. Mr.
Prewitt appealed those decisions to the Board.
On December 29, 2009, the Board upheld the denial of
service connection for tinnitus, hyperthyroidism, atrial
fibrillation, and injuries to cranial nerves II, III, and X. It
remanded Mr. Prewitt’s claim for service connection for
hypertension to obtain a DVA medical opinion. In evalu-
ating Mr. Prewitt’s hyperthyroid condition for possible
service connection, the Board found no evidence of, or
reference to, that condition in Mr. Prewitt’s service medi-
cal records. The Board also denied Mr. Prewitt’s claims of
CUE in the DVA’s rating decisions regarding cranial
nerves V and XI and in its 1970 finding of lack of service
connection for cranial nerves II, III, and X.
Mr. Prewitt appealed the Board’s decision to the
CAVC. The court held that it lacked jurisdiction to enter-
tain Mr. Prewitt’s service connection claim for hyperten-
sion because the Board had remanded that claim to the
regional office. In reciting the case’s procedural history,
the CAVC stated that in June 2006 Mr. Prewitt notified
the DVA that he waived any appeal regarding his injury
to cranial nerve V. Nevertheless, the court remanded Mr.
Prewitt’s claim “regarding any of [his] assignments of
CUE”—including for cranial nerve V—because the record
was uncertain as to whether the regional office had con-
sidered it in the first instance. As to Mr. Prewitt’s hyper-
thyroidism and atrial fibrillation claims, the CAVC
affirmed the finding of no service connection. The court
noted that the only potential evidence supporting Mr.
Prewitt’s claim for service connection regarding hyperthy-
roidism was that one of his handwritten service records
contained an illegible term. Although the court noted
that the term might be “hyperthyroidism,” it concluded
that the term more likely referred to the neuroma that
GEORGE PREWITT v. SHINSEKI 5
had been surgically excised and the related hyperesthesia
that he complained of at the time.
The CAVC also examined Mr. Prewitt’s medical rec-
ords and determined there was no evidence of any injury
to cranial nerves II, III, and X. The court held that the
Board had properly relied on the results of the medical
evaluations in 1980 and 2005, which found no clinical
evidence of injuries to those cranial nerves. 1 With respect
to Mr. Prewitt’s allegations that the DVA had failed to
assist him in obtaining all of his service medical records,
the court held that Mr. Prewitt had failed to raise that
issue in a timely manner and that it was not reasonably
raised by the record. Moreover, the court ruled, Mr.
Prewitt had failed to point to any basis for believing the
service records that had been produced were incomplete.
The court further held that the Board did not err by
denying service connection for his tinnitus. It ruled that
Mr. Prewitt was incompetent to provide lay testimony
concerning the cause of his condition, and that, because
he had failed to attend a DVA medical examination
without good cause, the DVA was required to rest its
decision on the existing evidence under 38 C.F.R.
§ 3.655(b).
Finally, the court held that the DVA did not commit
CUE in denying service connection for hyperthyroidism.
The court agreed with the Board’s determination that Mr.
Prewitt “suffered no permanent disability from VA’s
failure to diagnose his hyperthyroidism in 2001.” Once
the CAVC’s decision became final, Mr. Prewitt appealed
to this court.
1 Mr. Prewitt referred to those nerves as “muscle
groups,” but the CAVC correctly noted that his argument
was directed to the cranial nerves.
6 GEORGE PREWITT v. SHINSEKI
II
At the outset, we must determine whether the
CAVC’s ruling constitutes a final order over which we
may exercise jurisdiction even though the CAVC remand-
ed certain of Mr. Prewitt’s claims to the Board.
This court may not review the CAVC’s treatment of
the CUE and hypertension issues, because the court’s
decisions as to those issues are not final. We have repeat-
edly made clear that “a decision by the Court of Appeals
for Veterans Claims remanding to the Board is non-final
and not reviewable” unless “the remand action itself
would independently violate the rights of the veteran.”
Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir. 2006).
The CAVC’s remand order did not address Mr. Prewitt’s
CUE and hypertension claims, but simply permitted the
Board and the regional office to engage in further devel-
opment of those claims. The court’s decision does not
deprive Mr. Prewitt of any right or opportunity to have
those claims reviewed if he is not satisfied with the later
decisions of the regional office or the Board. 2
Mr. Prewitt contends that the court erred by finding
that he had waived his CUE claim regarding cranial
nerve V. However, the CAVC made no such ruling; in-
stead, it remanded his CUE claim for further develop-
ment. Going forward, the court directed the Board to
consider any additional argument or evidence submitted
in connection with that claim.
The fact that the remand decisions are non-final,
however, does not require us to dismiss Mr. Prewitt’s
appeal entirely. “This court has consistently recognized
2 We also agree that any of Mr. Prewitt’s claims that
are directed to various muscle groups were not presented
to the Board and therefore were not before the CAVC.
GEORGE PREWITT v. SHINSEKI 7
that the various claims of a veteran’s overall ‘case’ may be
treated as distinct for jurisdictional purposes.” Elkins v.
Gober, 229 F.3d 1369, 1374 (Fed. Cir. 2000). Because the
issues Mr. Prewitt appeals are not so “intertwined” that
deciding the claims before us would “disrupt the orderly
process of adjudication,” we are authorized to entertain
his appeal from the court’s decision as to those claims for
which the court’s ruling is final. Id. at 1376.
In addition, Mr. Prewitt has failed to dispute the
CAVC’s ruling regarding his rating for cranial nerves II,
III, and X; we therefore affirm those rulings. He does
challenge several of the CAVC’s other holdings, however,
and we now discuss each of those arguments.
1. TINNITUS
The Board and the CAVC held that Mr. Prewitt’s lay
testimony as to whether his tinnitus had an in-service
cause was incompetent and that his tinnitus claim had to
be denied because it was not supported by competent
medical evidence on that issue.
Section 1154(a) of Title 38 requires the DVA to give
“due consideration” to “all pertinent medical and lay
evidence” when it evaluates a claim for disability benefits.
In Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir.
2009), we rejected the DVA’s position that “competent
medical evidence” is required whenever the issue involves
“either medical etiology or a medical diagnosis.” In that
case, we held that a veteran’s wife was competent to
testify that her husband had committed suicide as a
result of a mental disorder related to his military service.
Id.; see Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1
(Fed. Cir. 2006) (vacating a CAVC decision because it
“failed to consider whether the lay statements presented
sufficient evidence of the etiology of [the veteran’s] disa-
bility”); see generally Jandreau v. Nicholson, 492 F.3d
1372, 1376-77 (Fed. Cir. 2007).
8 GEORGE PREWITT v. SHINSEKI
The government argues that the CAVC simply af-
firmed the Board’s fact-specific determination that Mr.
Prewitt’s lay evidence was incompetent in this particular
case. But the Board’s ruling is not clear in that regard.
The Board stated that, although Mr. Prewitt was “compe-
tent to establish the presence of the disability,” he was
not competent to testify as to causation, i.e., whether that
condition had its origin in service. The Board concluded
by stating that where, as in this case, “the determinative
questions involve a nexus or causation, where a lay asser-
tion on medical causation is not competent evi-
dence, . . . competent medical evidence is required to
substantiate the claim.” The CAVC upheld the Board’s
ruling on this point, stating that Mr. Prewitt “did not
have the specialized training necessary to provide an
etiology opinion as to causation of his tinnitus.”
The government acknowledges that the Board’s dis-
cussion of this issue “perhaps lacks clarity,” and it sug-
gests that if this court should find the Board’s
“statements on this point so unclear as to permit an
inference that the [B]oard categorically excluded the
potential relevance of lay testimony” as to causation, the
court “could remand the tinnitus claim for clarification
and, if necessary, more specific findings as to the compe-
tence and sufficiency of Mr. Prewitt’s lay opinion.”
Upon consideration of the governing case law and the
record in this case, we believe that a remand for those
purposes is appropriate. To the extent that the Board
concludes, as a factual matter, that Mr. Prewitt’s lay
testimony is not sufficient to satisfy his burden of showing
service connection for his tinnitus, that is a factual de-
termination that is not within our jurisdiction to review.
But to the extent that the Board was applying, and the
CAVC was upholding, a broader rule that lay evidence is
incompetent and therefore inadmissible on the issue of in-
service causation for a condition that manifests itself after
GEORGE PREWITT v. SHINSEKI 9
the veteran has left the service, that rule is inconsistent
with section 1154 as we have construed it.
2. HYPERTHYROIDISM AND ATRIAL FIBRILLATION
Mr. Prewitt next argues that the CAVC erred in deny-
ing service connection for hyperthyroidism and atrial
fibrillation because it misinterpreted the requirement of
38 U.S.C. § 5107(b) that the DVA give the veteran claim-
ant the “benefit of the doubt.” But the CAVC and the
Board did not construe section 5107(b) at all. Mr.
Prewitt’s real complaint is that the CAVC did not apply
that provision to his case. Section 5107(b), however,
applies only “[w]hen there is an approximate balance of
positive and negative evidence.” In this case, the CAVC
held that the facts weighed against a finding of service
connection. It reasoned that the ambiguous word in Mr.
Prewitt’s service medical records was likely “hyperesthe-
sia,” not “hyperthyroidism,” because the former term
“makes much more sense” in context. The mere presence
of an ambiguous term in a service record does not legally
require the CAVC to apply section 5107(b). 3
3 In his reply brief, Mr. Prewitt alludes to the provi-
sion in 38 U.S.C. § 1154(b) requiring that “every reasona-
ble doubt” regarding service connection be resolved in a
combat veteran’s favor. Mr. Prewitt failed to make that
argument in his opening brief, however, and he has
therefore waived it. SmithKline Beecham Corp. v. Apotex
Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006). In any event,
the “every reasonable doubt” rule in section 1154(b)
applies to the question whether the combat veteran
incurred an injury or disease during service, not to
whether there is a nexus between the in-service event and
a condition that manifested itself later. Davidson, 581
F.3d at 1315.
As for Mr. Prewitt’s argument that the CAVC improp-
erly discounted a medical article that he cited in support
10 GEORGE PREWITT v. SHINSEKI
Contrary to Mr. Prewitt’s argument, the CAVC did
not engage in improper de novo factfinding in making its
ruling. It simply affirmed the Board’s decision, on the
same record, finding a lack of service connection for
hyperthyroidism. Likewise, the court did not rely on its
observation that Mr. Prewitt refused certain medicines
and left a VA hospital against medical advice. The recita-
tion of those facts served only as background to the
CAVC’s decision and therefore do not provide a basis for
reversing the court’s judgment.
3. FAILURE TO ASSIST
Mr. Prewitt claims that the Secretary failed in his du-
ty to assist because the DVA issued several medical
opinions regarding his disability even though Mr. Prewitt
was not given a physical examination. The Secretary,
however, is obligated to provide “a medical examination or
. . . a medical opinion” only “when such an examination or
opinion is necessary to make a decision on the claim.” 38
U.S.C. § 5103A. Mr. Prewitt has pointed to no reason to
conclude that the multiple DVA medical opinions he
received were insufficient to resolve his claims, and we
lack jurisdiction to review the Secretary’s determination
that a physical examination was not necessary to an
accurate resolution of his case.
4. DUE PROCESS
Mr. Prewitt points to two alleged due process viola-
tions in the handling of his case. He first argues that the
DVA altered or ignored portions of his service medical
records that supported his disability claims and that the
CAVC improperly engaged in de novo factfinding in
determining that no files were missing from his records.
But the CAVC simply held that Mr. Prewitt had failed to
of his service connection claim, we lack jurisdiction to
review that fact-based ruling. 38 U.S.C. § 7292(d)(2).
GEORGE PREWITT v. SHINSEKI 11
provide a basis to conclude that some records were miss-
ing. It did not engage in de novo factfinding.
More importantly, the CAVC properly held that Mr.
Prewitt had waived his service-records argument by not
raising it before the Board. See Maggitt v. West, 202 F.3d
1370, 1378 (Fed. Cir. 2000) (holding that “the Veterans
Court is uniquely positioned to balance and decide the
considerations regarding exhaustion in a particular
case”). Mr. Prewitt argues that the CAVC’s finding of
waiver is itself an instance of improper de novo factfind-
ing, but that contention is plainly incorrect. The CAVC
merely reviewed the arguments presented to the Board;
the court did not add any factual determinations to the
record. To the extent Mr. Prewitt complains that the
Board never made factual findings about the complete-
ness of his service records, the reason for the Board’s
failure to do so is that Mr. Prewitt did not raise that
argument before the Board.
Mr. Prewitt’s other due process contention is that the
CAVC struck his timely filed reply brief and required him
to refile his principal brief. The CAVC, however, “has
broad discretion to interpret and apply its Rules of Prac-
tice and Procedure,” Bastien v. Shinseki, 599 F.3d 1301,
1307 (Fed. Cir. 2010), and Mr. Prewitt has not provided
any reason to believe that the CAVC abused that discre-
tion in applying its rules in this case. Moreover, the
record indicates that the CAVC ultimately permitted Mr.
Prewitt to file his principal brief and reply brief, so it is
unclear what prejudice he claims to have suffered as a
result of the orders to which he objects. Accordingly, we
reject his due process claims as groundless.
No costs.
AFFIRMED in part, REVERSED in part, and
REMANDED