Groves v. Peake

 United States Court of Appeals for the Federal Circuit

                                     2007-7241


                                JAMES C. GROVES,

                                                           Claimant-Appellant,

                                          v.


                JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                           Respondent-Appellee.


      Virginia A. Girard-Brady, ABS Legal Advocates, P.A., of Lawrence, Kansas,
argued for claimant-appellant.

       Brian T. Edmunds, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney
General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of
counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and
Jamie L. Mueller, Attorney, United States Department of Veterans Affairs, of
Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Mary J. Schoelen
United States Court of Appeals for the Federal Circuit

                                     2007-7241

                                JAMES C. GROVES,

                                                           Claimant-Appellant,

                                         v.

               JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,


                                                           Respondent-Appellee.


Appeal from the United States Court of Appeals for Veterans Claims in 04-2375, Judge
Mary J. Schoelen.

                          __________________________

                          DECIDED: May 1, 2008
                          __________________________


Before MAYER, GAJARSA, and MOORE, Circuit Judges.

MOORE, Circuit Judge.

      James C. Groves requests that we review the final judgment of the United States

Court of Appeals for Veterans Claims (Veterans Court) affirming the decision of the

Board of Veterans’ Appeals (Board). The Board held that a March 1982 regional office

rating decision, which denied service connection for paranoid schizophrenia, did not

contain clear and unmistakable error. We reverse and remand.

                                  BACKGROUND

      Mr. Groves served on active duty in the United States Army from August 1969 to

January 1972 and from September 1974 to December 1979. On August 29, 1979,
during service, Mr. Groves was diagnosed with an acute psychotic episode. Mr. Groves

was referred for further evaluation and diagnosed on September 7, 1979 with paranoid

schizophrenia. The diagnosis noted that Mr. Groves’ mental status seemed to be the

same as during his hospitalization the month before. Upon his administrative discharge

in December 1979, Mr. Groves received a diagnosis of “antisocial personality disorder,

chronic, severe.” This diagnosis did not mention schizophrenia, neither confirming nor

denying Mr. Groves’ earlier diagnoses.

       Post-service, in September 1981, Mr. Groves was hospitalized and diagnosed

with paranoid schizophrenia. In November 1981, Mr. Groves was hospitalized again

and diagnosed with schizoaffective disorder. This second evaluation noted that Mr.

Grove exhibited no symptoms of any personality disorders.

       Subsequently, Mr. Groves filed a claim for service connection with his Veterans

Affairs (VA) regional office (RO).     A VA examination in January 1982 confirmed a

diagnosis of paranoid schizophrenia. The examiner’s report indicated that there were

no service records of any kind available at that time. The report also stated that based

upon Mr. Grove’s own records “[a]s far as can be determined, a diagnosis of

schizophrenic reaction, paranoid type has been made in the past and this is being

carried forward.” In March 1982, the RO issued a ratings decision that denied the

service connection claim because there was “no evidence in [the service medical

records] for treatment for [sic] a chronic [neuropsychiatric] condition.”

       On June 13, 2000, Mr. Groves requested that the RO reopen his claim for a

psychiatric disability on the grounds of new and material evidence and clear and

unmistakable error in the March 1982 RO decision. Mr. Groves submitted an opinion




2007-7241                                 2
from a VA psychiatrist dated June 12, 2000, which stated that, upon review of the

service medical records, there was little doubt that the discharge diagnosis for Mr.

Groves’ last active duty admission in August 1979 was for a psychotic episode. A VA

examination was ordered and the examiner, who reviewed the records, concluded that

“without any question, . . . this man started showing psychotic manifestations of a

paranoid type of nature while on active duty and has continued to do so up until this

moment . . .” Based on the VA examiner’s opinion, the RO granted service connection

for paranoid schizophrenia, effective as of the date of the reopened claim. However,

the RO concluded that the March 1982 ratings decision did not contain clear and

unmistakable error and accordingly denied Mr. Groves an earlier effective date for his

benefits.

       Mr. Groves appealed the denial of the earlier effective date to the Board, which

affirmed the RO’s decision. The Board acknowledged that Mr. Groves had received a

diagnosis of paranoid schizophrenia while in service. The Board also acknowledged

that post-service, Mr. Groves had been hospitalized for paranoid schizophrenia and

then hospitalized a second time for schizoaffective disorder. Nonetheless, the Board

concluded that, despite the 1982 VA examination that diagnosed Mr. Groves with

paranoid schizophrenia, the RO had not committed clear and unmistakable error

because “there was no etiological opinion linking such condition to service” and “the

evidence of the record in 1982 did not require a finding of service connection.”

       The Veterans Court affirmed the Board’s decision.            The Veterans Court

explained that, notwithstanding the RO’s error in failing to account for Mr. Groves’ in-

service diagnosis of schizophrenia, this error was not clear and unmistakable because




2007-7241                                3
the record at the time did not necessitate a change in outcome as it failed to contain

medical evidence linking Mr. Groves’ post-service diagnosis of schizophrenia with his

in-service diagnosis of schizophrenia.

       Mr. Groves moved for reconsideration, asserting that, under 38 C.F.R.

§ 3.303(b), his in-service diagnosis was presumptively linked to his present diagnosis

such that there was no need for him to provide further etiological medical evidence to

establish the same. The Veterans Court granted his motion, issuing essentially the

same opinion but adding that Mr. Groves’ “ultimate in-service diagnosis was antisocial

personality disorder” and that reasonable minds could conclude that his personality

disorder diagnosis at discharge was distinct from his schizophrenia diagnosis.

                                       DISCUSSION

       The scope of our review of a Veterans Court decision is limited by statute. See

38 U.S.C. § 7292. Under § 7292(a), we may review a decision by the Veterans Court

with respect to the validity of “any statute or regulation . . . or any interpretation thereof

(other than a determination as to a factual matter) that was relied on by the [Veterans]

Court in making the decision.” Further, absent a constitutional issue, we may not review

challenges to factual determinations or challenges to the application of a law or

regulation to facts. Id. § 7292(d)(2). We review interpretation of regulations by the

Veterans Court de novo and may set aside any regulation or interpretation of a

regulation that we find to be arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law; contrary to a constitutional right, power, privilege, or

immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a




2007-7241                                 4
statutory right; or without observation of a procedure required by law. Id. § 7292(d)(1);

Smith v. Nicholson, 451 F.3d 1344, 1347 (Fed. Cir. 2006).

       Mr. Groves appeals to this court arguing that the Veterans Court erred in

requiring evidence of a medical nexus, an “etiological link,” between the paranoid

schizophrenia diagnosed during service and the paranoid schizophrenia diagnosed after

discharge. Mr. Groves argues that this requirement imposed by the Veterans Court is in

direct contradiction to a proper interpretation of 38 C.F.R. § 3.303. We agree.

       38 C.F.R. § 3.303(a) provides that service connection “may be accomplished by

affirmatively showing inception or aggravation during service . . .” This provision further

instructs that “[d]eterminations as to service connection will be based on review of the

entire evidence of record, with due consideration to the policy of the Department of

Veterans Affairs to administer the law under a broad and liberal interpretation consistent

with the facts in each individual case.” Id. § 3.303(a). Section 3.303(a) provides that

each disabling condition for which a veteran seeks service connection “must be

considered on the basis of . . . all pertinent medical and lay evidence.”         See also

Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

       Subsection (b), titled “Chronicity and continuity,” establishes the circumstances

under which service connection is attributed to a chronic disability incurred or

aggravated during active service. 38 C.F.R. § 3.303(b). It provides in relevant part:

       With chronic disease shown as such in service (or within the presumptive
       period under § 3.307) so as to permit a finding of service connection,
       subsequent manifestations of the same chronic disease at any later date,
       however remote, are service connected, unless clearly attributable to
       intercurrent causes.




2007-7241                                5
Id. The plain language of § 3.303(b) establishes a presumption of service connection

(rebuttable only by “clearly attributable intercurrent causes”) for a chronic disease which

manifests during service and then again “at any later date, however remote.” Id. The

Board’s, and subsequently the Veterans Court’s, requirement of medical evidence

demonstrating an etiological link directly contradicts this interpretation of § 3.303(b)

under which Mr. Groves was entitled to a presumption of service connection given that

his condition diagnosed in service was chronic.

       By its own regulations, the Department of Veterans Affairs has classified as

chronic particular diseases, including psychoses, pursuant to 38 C.F.R. § 3.309(a), and

the parties do not dispute that paranoid schizophrenia is a psychosis. 1 See 38 C.F.R.

§§ 3.309(a) (listing chronic diseases); 4.130 (schizophrenia is listed in the ratings

schedule “Schizophrenia and Other Psychotic Disorders”). It is undisputed that Mr.

Groves was diagnosed with paranoid schizophrenia during service and again shortly

after discharge. The Veterans Court therefore committed legal error by disregarding the

applicability of § 3.303(b) and requiring medical evidence to establish a nexus between

the two diagnoses. In applying the legal standards discussed above to the undisputed

diagnoses in the record, we conclude as a matter of law that Mr. Groves is entitled to

service connection for paranoid schizophrenia. See Bailey v. Principi, 351 F.3d 1381,

1384 (Fed. Cir. 2003) (en banc) (treating the availability of a legal standard as a matter

of law that we are authorized by statute to address where the material facts are not in

       1
              Even if paranoid schizophrenia were not defined as chronic by the
regulations, § 3.303(b) further provides that: “When the fact of chronicity in service is
not adequately supported, then a showing of continuity after discharge is required to
support the claim.” The parties do not dispute that Mr. Groves was diagnosed with




2007-7241                                6
dispute and the adoption of a particular legal standard would dictate the outcome of a

veteran’s claim). In light of our interpretation of § 3.303(b), the March 1982 ratings

decision contained clear and unmistakable error. Mr. Groves is entitled to an earlier

effective date for his benefits.   Accordingly, we reverse the determination of the

Veterans Court and remand for entry of judgment consistent with this opinion.

                            REVERSED and REMANDED




paranoid schizophrenia in September 1979 (during service) and diagnosed with
paranoid schizophrenia again in September 1981 (shortly after discharge).


2007-7241                              7