Smith v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
REGINA R. SMITH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7019
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case No. 07-1541, Judge William A.
Moorman.
___________________________
Decided: May 18, 2011
___________________________
VIRGINIA A. GIRARD-BRADY, ABS Legal Advocates,
P.A., of Lawrence, Kansas, for claimant-appellant.
HILLARY A. STERN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
SMITH v. DVA 2
KIRK MANHARDT, Assistant Director. Of counsel on the
brief were DAVID J. BARRANS, Deputy Assistant General
Counsel, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before DYK, MOORE, and O’MALLEY, Circuit Judges.
Per Curiam.
Regina R. Smith appeals from a memorandum deci-
sion of the U.S. Court of Appeals for Veterans Claims
(Veterans Court), Smith v. Shinseki, No. 07-1541 (Vet.
App. June 29, 2009), which affirmed a May 2, 2007 deci-
sion of the Board of Veterans Appeals (Board) denying
service connection for post-traumatic stress disorder
(PTSD). For the reasons discussed below, we affirm.
Ms. Smith served in the U.S. Army from August 1974
to July 1975. In May 1975, while in service, Ms. Smith
underwent a psychiatric evaluation conducted by the U.S.
Army. During this evaluation, Ms. Smith complained of
being “depressed and nervous because of [her] job situa-
tion and consistent harassment in the barracks.” J.A. 89.
As part of an investigation in 1975, the Army determined
that Ms. Smith had engaged in sexual conduct with
another soldier. Ms. Smith separated from the Army in
July 1975 for reasons of unsuitability. During her separa-
tion examination, Ms. Smith complained of “frequent
trouble sleeping,” “[d]epression or excessive worry,” and
“[n]ervous trouble.” J.A. 52.
A 1992 examination by the Social Security Admini-
stration diagnosed Ms. Smith with PTSD based on “gen-
der identity problems, abusive discipline by her
stepfather, and difficulties interacting socially with the
general community for gender reasons.” J.A. 647. In
November 1997, Ms. Smith filed a claim for PTSD with
3 SMITH v. DVA
her Regional Office (RO). The RO denied this claim in
1998 and Ms. Smith filed a notice of disagreement. In
January 1999, Ms. Smith filed a statement asserting, for
the first time, that she was raped while in service. Again,
in 2003, Ms. Smith filed a statement indicating that she
was raped while in service. A PTSD examination deter-
mined that she did not meet the PTSD criteria. The
examiner noted that it was impossible to verify Ms.
Smith’s account of the alleged assault. Further, the
examiner noted that Ms. Smith’s 1992 examination
attributed her PTSD entirely to childhood and other
experiences entirely outside her military service. Thus,
Ms. Smith’s claim for service connection of PTSD was
denied by the Board and she appealed to the Veterans
Court.
The Veterans Court affirmed the determination of the
Board regarding PTSD. It noted that the Board reviewed
all relevant evidence and that it did not support Ms.
Smith’s claim that she was raped while in service. It also
recognized that during three examinations in 1993, 1997,
and 1998, Ms. Smith failed to state that she was raped
while in service. There is no evidence that Ms. Smith
made this allegation prior to 1999.
The Veterans Court also rejected Ms. Smith’s argu-
ment that she is entitled to service connection for PTSD
due to aggravation of a preexisting condition. In other
words, Ms. Smith argued that even if she had PTSD prior
to service, her time in service aggravated the condition
and she should have service connection. The Veterans
Court found that Ms. Smith failed to raise this issue
below. Further, after a review of the evidence, the Veter-
ans Court determined that “the record does not indicate
that the issue should have been raised sua sponte by the
Board.” J.A. vii.
SMITH v. DVA 4
Ms. Smith appeals from the Veterans Court’s decision,
and our jurisdiction is defined by 38 U.S.C. § 7292(c).
Section 7292 limits our jurisdiction over appeals of Veter-
ans Court decisions. We may review “the validity of a
decision of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the Court in making the decision.” Id.§ 7292(a). Absent a constitutional issue, we cannot re-
view factual determinations or “challenge[s] to a law or
regulation as applied to the facts of a particular case.” Id.
§ 7292(d)(2).
Ms. Smith argues that the Veterans Court misinter-
preted 38 U.S.C. § 7104(a) when it determined that she
was not entitled to service connection for PTSD based on
in-service aggravation. Section 7104(a) states that
“[d]ecisions of the Board shall be based on the entire
record in the proceeding and upon consideration of all
evidence and material of record and applicable provisions
of law and regulation.” Ms. Smith states that she did not
have an affirmative obligation to raise all possible theo-
ries of entitlement. Thus, she argues that the Veterans
Court erred when it stated that she failed to raise the
aggravation issue before the Board. She contends that
the Board had a responsibility to consider the issue even
though she did not expressly raise it because the underly-
ing evidence supported a finding of in-service aggravation.
She notes that under 38 C.F.R. § 20.202, the Board is
required to construe her arguments “in a liberal manner
for purposes of determining whether they raise issues on
appeal.” Ms. Smith argues that by finding that she failed
to raise this issue before the Board, the Veterans Court
improperly shifted the burden to the veteran to raise all
possible theories of entitlement contrary to § 7104(a).
5 SMITH v. DVA
The government argues that the Veterans Court’s
analysis was not limited to whether Ms. Smith expressly
raised the issue of in-service aggravation before the
Board. Rather, the government contends that the Veter-
ans Court also reviewed the evidence to determine if the
Board should have reached the issue despite Ms. Smith’s
failure to make the express argument.
We agree with the government that the Veterans
Court did not err. To the extent that it construed
§ 7104(a), the Veterans Court was clearly in line with our
opinion in Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir.
2009). In Robinson, we acknowledged that the Board
must liberally construe a veteran’s arguments to reach
issues even if they are not expressly raised. 557 F.3d at
1361. However, we held that this responsibility has
boundaries. Specifically, we held that “[w]here a fully
developed record is presented to the Board with no evi-
dentiary support for a particular theory of recovery, there
is no reason for the Board to address or consider such a
theory.” Id.Having determined that the Board must only consider
issues raised by the record evidence, we are left with the
Veterans Court’s determination that “the record does not
indicate that the issue [of in-service aggravation of PTSD]
should have been raised sua sponte by the Board.” J.A.
vii. The Veterans Court considered all of the record
evidence in its opinion, did not improperly shift any
burden, and made this application of law to fact that is
not subject to our review. Because the Veterans Court did
not misinterpret § 7104(a) and because we lack jurisdic-
tion to review the Veterans Court’s factfindings, we
affirm.
AFFIRMED
SMITH v. DVA 6
COSTS
No costs.