Theresa Haynes v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THERESA H. HAYNES,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2013-7027
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-3420, Judge William A. Moor-
man.
______________________
Decided: May 9, 2013
______________________
THERESA H. HAYNES, Spring, Texas, pro se.
K. ELIZABETH WITWER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment 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 SCOTT D. AUSTIN, Assistant
2 THERESA HAYNES v. SHINSEKI
Director. Of counsel on the brief were MICHAEL J.
TIMINSKI, Deputy Assistant General Counsel and AMANDA
R. BLACKMON, Attorney, United States Department of
Veterans Affairs, of Washington, DC.
______________________
Before DYK, BRYSON, and REYNA, Circuit Judges.
PER CURIAM.
Theresa Haynes appeals from the decision of the
Court of Appeals for Veterans Claims (“Veterans Court”).
The Veterans Court affirmed the decision of the Depart-
ment of Veterans Affairs (“VA”) denying her entitlement
to dependency and indemnity compensation (“DIC”). We
affirm.
BACKGROUND
Section 1151 of title 38 of the U.S. Code provides for
DIC benefits for survivors of veterans whose non-service-
connected deaths were “caused by hospital care, medical
or surgical treatment, or examination furnished [to] the
veteran” by the VA. See 38 U.S.C. § 1151(a)(1). Prior to
October 1, 1997, the survivor did not need to show any
fault on the part of the VA in order to establish entitle-
ment under section 1151, so long as the medical treat-
ment was the proximate cause of the veteran’s death. See
38 U.S.C. § 1151 (1994) (providing DIC benefits to “any
veteran . . . suffer[ing] injury . . . as the result of” VA
medical care); Brown v. Gardner, 513 U.S. 115 (1994)
(holding that the statute, as then in force, contained no
requirement of fault). In 1996, however, Congress amend-
ed the statute, effective October 1, 1997, to require the
survivor to prove that “the proximate cause of the disabil-
ity or death was . . . carelessness, negligence, lack of
proper skill, error in judgment, or similar instance of fault
on the part of the [VA] in furnishing the hospital care,
medical or surgical treatment, or examination.” See 1997
Departments of Veterans Affairs and Housing and Urban
THERESA HAYNES v. SHINSEKI 3
Development, and Independent Agencies Appropriations
Act (“VA Appropriations Act”), Pub. L. No. 104-204,
§ 422(a),(c), 110 Stat. 2874, 2926-27 (1996) (amending 38
U.S.C. § 1151).
Ms. Haynes’s late husband, Emil P. Haynes, served in
the U.S. Army from April 1968 to April 1970. In January
and February 1987, Mr. Haynes was hospitalized at a VA
facility for surgical treatment of a service-connected knee
disability. The records from that hospitalization do not
disclose any complaints of, or treatment for, any gastroin-
testinal maladies. In March 1987, Mr. Haynes provided a
medical history to the VA’s medical staff, in which he
denied having any gastrointestinal problems. In Decem-
ber 1987, Mr. Haynes was admitted to a private hospital,
complaining of abdominal pain, and was diagnosed with
colon cancer. According to notes made by the treating
physician at the private hospital, Mr. Haynes claimed to
have been treated at a VA hospital “approximately a year
[earlier]” for severe abdominal pains, and to have under-
gone medical tests that revealed the presence of “a spot on
his intestine.” J.A. 47. According to the same notes, Mr.
Haynes reported also that the VA did not follow up on
these test results. Mr. Haynes underwent a colectomy at
the private hospital, but died of colon cancer in April
1990.
After Mr. Haynes’s death, his widow, Ms. Haynes,
filed a claim for DIC benefits under section 1151, alleging
that the VA’s failure to diagnose his cancer caused his
premature death. The VA regional office denied her claim,
and in 1996 the Board of Veterans’ Appeals (“Board”)
affirmed. See In re Hearne-Haynes, No. 89-15 288 (Bd.
Vet. App. Nov. 27, 1996). Ms. Haynes did not appeal the
Board’s decision to the Veterans Court, and it became
final.
In January 1999, Ms. Haynes sought to reopen her
claim, citing new and material evidence in the form of a
4 THERESA HAYNES v. SHINSEKI
copy of the private physician’s notes from 1987 and a
signed affidavit in which she testified that her husband
had sought treatment at a VA hospital for abdominal
discomfort and bloody stool prior to his diagnosis of colon
cancer. See 38 U.S.C. § 5108 (allowing a claim to be
reopened on grounds of “new and material evidence”).
After the VA regional office initially denied her petition to
reopen, the Board eventually reversed the regional office’s
decision, reopened the claim, and remanded it to the
regional office for additional development. Ms. Haynes
submitted a medical evaluation by another private physi-
cian, Dr. Bash, who opined that the VA’s failure to diag-
nose the veteran’s colon cancer prior to December 1987
was “below the standard of care and represents poor
judgment, skill, and/or negligence,” and that the “poor VA
care caused [the veteran] to die prematurely.” J.A. 66.
This opinion was based in part on Ms. Haynes’s statement
to Dr. Bash that prior to her husband’s cancer diagnosis,
he had complained to VA physicians of abdominal pain,
bloody stool, and weight loss. The Board then sought an
independent medical evaluation from another physician,
Dr. Grem. Dr. Grem opined that the VA’s failure to detect
the tumor was not negligent, based both on the absence of
any VA records establishing that Mr. Haynes had com-
plained to his VA physicians of abdominal pain and on the
rarity of colon cancer among individuals matching Mr.
Haynes’s demographic profile.
The VA regional office denied Ms. Haynes’s reopened
claim, and the Board affirmed the denial in 2009. See In
re Haynes, No. 00-04 133 (Bd. Vet. App. June 30, 2009).
The Board found that “Dr. B[ash]’s credibility is impaired
due to statements that he made that are not supported by
the evidence of record.” Id., slip op. at 19. In particular,
the Board noted that Dr. Bash had supplied an earlier
evaluation opining that Mr. Haynes’s colon cancer was
most likely caused by Agent Orange exposure occurring in
Vietnam, only to withdraw the evaluation when informed
THERESA HAYNES v. SHINSEKI 5
by the VA that Mr. Haynes’s service records did not reveal
any service in Vietnam. The Board also noted that Dr.
Bash relied for his second opinion on Ms. Haynes’s state-
ments indicating that her husband had complained to the
VA of abdominal pain, even though those statements were
contradicted by the veteran’s March 1987 medical history.
By contrast, the Board credited Dr. Grem’s evaluation,
according to which Mr. Haynes’s medical records did not
support the allegation that the VA was negligent in
failing to diagnose his cancer.
Ms. Haynes appealed to the Veterans Court, which af-
firmed. See Haynes v. Shinseki, No. 10-3420 (Vet. App.
Aug. 31, 2012). The court applied the post-1997 version of
the statute, which requires proof of fault. Id., slip op. at 3
& n.1. Ms. Haynes appealed to this court. Our jurisdiction
in this case is governed by 38 U.S.C. § 7292.
DISCUSSION
We review legal determinations of the Veterans Court
de novo. See 38 U.S.C. § 7292(a); Guillory v. Shinseki, 669
F.3d 1314, 1317-18 (Fed. Cir. 2012). We lack jurisdiction,
however, to review factual determinations or the applica-
tion of law to facts. See § 7292(d); Durr v. Nicholson, 400
F.3d 1375, 1378 (Fed. Cir. 2005).
Ms. Haynes challenges first the decision of the Veter-
ans Court to apply the post-1997 version of section 1151,
with its requirement that she prove negligence on the
part of the VA. Ms. Haynes argues that because her
appeal relates to a claim filed prior to the amendment’s
effective date, the application of the post-1997 version of
the statute is impermissibly retroactive. The VA’s denial
of Ms. Haynes’s original 1991 application for DIC benefits
became final when she failed to appeal the Board’s 1996
decision, however, and the present litigation stems from
her 1999 petition to reopen her claim on the basis of new
and material evidence. Congress explicitly made the
amended statute applicable to claims for which a petition
6 THERESA HAYNES v. SHINSEKI
to reopen was filed after the amendment’s effective date.
See VA Appropriations Act, § 422(b)(2), 110 Stat. at 2927
(“Section 1151 of title 38, United States Code (as amended
by subsection (a)), shall govern all administrative and
judicial determinations of eligibility for benefits under
such section that are made with respect to claims filed on
or after the effective date [of October 1, 1997] . . . , includ-
ing those based on original applications and applications
seeking to reopen, revise, reconsider, or otherwise readju-
dicate on any basis claims for benefits under such section
1151 or any provision of law that is a predecessor of such
section.” (emphases added)). Clear statements of this sort
by Congress regarding “the proper temporal reach of
statutes” are conclusive, absent a constitutional limitation
on Congress’s power. See Landgraf v. USI Film Prods.,
511 U.S. 244, 272-73 (1994); Commonwealth Edison Co. v.
United States, 271 F.3d 1327, 1341 (Fed. Cir. 2001) (en
banc).
We see no constitutional difficulty in applying the
amended version of section 1151 as Congress has dictated.
Even if we were to assume that this application of the
amended statute qualifies as “retroactive,” as our prece-
dent has defined that term, see Princess Cruises, Inc. v.
United States, 397 F.3d 1358, 1366 (Fed. Cir. 2005); see
also Landgraf, 511 U.S. at 269 (“A statute does not oper-
ate ‘retrospectively’ merely because it is applied in a case
arising from conduct antedating the statute’s enactment
. . . .”), the burden would lie on Ms. Haynes “to establish
that the legislature has acted in an arbitrary and irra-
tional way,” and that no “rational legislative purpose”
exists for applying the amendment retroactively. See
Commonwealth Edison, 271 F.3d at 1341 (quotation
marks omitted); see also United States v. Sperry Corp.,
493 U.S. 52, 64-66 (1989) (applying rational basis scruti-
ny). Ms. Haynes has not met this burden. See also Land-
graf, 511 U.S. at 272 (noting that “the constitutional
THERESA HAYNES v. SHINSEKI 7
impediments to retroactive civil legislation are . . . mod-
est” (emphasis omitted)).
Ms. Haynes also challenges the Board’s decision to
seek an independent medical evaluation from Dr. Grem.
Ms. Haynes relies on case-law from the Veterans Court
prohibiting the VA from seeking evaluations in order to
“obtain evidence against an appellant’s case,” see Mariano
v. Principi, 17 Vet. App. 305, 312 (2003). We need not
decide whether this case-law reflects a correct interpreta-
tion of the statute. It is undisputed that the Board may
request such an evaluation when doing so is “necessary to
make a decision on a claim.” See 38 U.S.C. § 5103A(d)(1);
38 C.F.R. § 3.159(c)(4). As the government points out, in
light of concerns about Dr. Bash’s credibility, the Board
reasonably needed a second evaluation in order to “make
a decision on [Ms. Haynes’s] claim,” see 38 U.S.C.
§ 5103A(d). We see no error in the Board’s decision to seek
a second opinion.
Finally, Ms. Haynes challenges the Veterans Court’s
determination that an additional ground for DIC benefits,
related to the VA’s alleged failure to treat her husband’s
dental disease, was not raised before the Board or “rea-
sonably raised by the record.” See Haynes, No. 10-3420,
slip op. at 5 (Vet. App. Aug. 31, 2012). The sole evidence
presented by Ms. Haynes that the issue was properly
raised in the context of this claim is a pair of letters from
the VA, issued in response to an administrative tort claim
filed by Ms. Haynes in February 2012, noting that a prior
tort claim also related to the death of Mr. Haynes was
filed in 1993. Nothing in either of these letters can rea-
sonably be read as conceding that Ms. Haynes had proper-
ly raised the issue of her husband’s dental disease in the
context of her DIC claim. See Mansfield v. Peake, 525 F.3d
1312, 1317 (Fed. Cir. 2008) (explaining the distinction
between a federal tort claim and a claim for veterans’
benefits under section 1151). We therefore see no reason
8 THERESA HAYNES v. SHINSEKI
to disturb the Veterans Court’s determination, even if we
assume that we would have jurisdiction to do so.
We have considered Ms. Haynes’s other arguments,
and find them to be without merit.
AFFIRMED
COSTS
No costs.