William C. Cromer v. R. James Nicholson

          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

                                            No. 03-0133

                                WILLIAM C. CROMER , APPELLANT ,

                                                 V.


                                    R. JAMES NICHOLSON ,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.

                  Before IVERS, Chief Judge, and LANCE and DAVIS, Judges.

                                            ORDER

        The appellant, through counsel, appeals a January 15, 2003, decision of the Board of
Veterans' Appeals (Board or BVA) that denied entitlement to service connection for dementia. Both
parties filed briefs, and the appellant filed a reply. This appeal is timely, and the Court has
jurisdiction over the case pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court
will affirm the Board’s decision.

        The appellant had active service in the U.S. Army from December 1945 to May 1947.
Record (R.) at 20. In October 1993, he filed a claim for service connection for organic affective
dementia, alleging that it came about when he "suffered a fever of 108 degrees while assigned at Ft.
Sill, Oklahoma during November 1945 related to consumption of milk contaminated with
streptococci agent." R. at 172. His claim indicated that he tried to acquire his service medical
records (SMRs) from the National Personnel Records Center (NPRC), but they informed him that
his SMRs were not on file and were likely destroyed in a fire in 1973. R. at 173. His claim also
included a physician's statement, saying that his mental disability dated from the time of his in-
service illness. R. at 174. VA attempted to obtain alternative records, and in May 1994, it received
hospital extracts from the Office of the Army Surgeon General (SGO) showing brief periods of
hospitalization for pharyngitis and peritonsillar abscess in 1945. R. at 181-83. The appellant's claim
was subsequently denied, and he unsuccessfully attempted to reopen the case in 1996. R. at 185,
253-55. The appellant appealed to the Board, and in March 1998, the Board remanded for
readjudication. R. at 316-18. A November 1999 Board decision affirmed the regional office's (RO's)
denial of the appellant's claim. R. at 387-99. The appellant appealed to this Court, and in December
2001, this Court granted a joint motion for remand. R. at 411. The appellant appealed to this Court
again, and in December 2001, the Court granted another joint motion for remand. R. at 444. The
Court's 2001 remand resulted in the decision presently on appeal.

         In the decision on appeal, the Board concluded that the duty to assist had been satisfied.
With regard to the merits of the claim, the Board denied service connection for dementia, finding
that "[d]ementia began decades after service, and there is no credible competent medical evidence
to link it to service." R. at 16. The Board noted that several medical professionals stated that the
appellant's condition had its origin in service. However, the Board observed that no objective
medical evidence supported those opinions. As the Board stated: "Since 1993, the veteran's story
has been repeated by him to other doctors, and doctors have passed the story on to one another." R.
at 14. The Board also stated that

       it is not until the 1990s, in connection with the claim for service connection, that the
       veteran came up with the story of the bad milk, brain infection, etc[.], in service.
       Then too, while his story may not be a conscious fabrication, it comes from an
       individual with dementia, and doctors have described his recent flawed memory,
       confusion, and other impaired thought processes surrounding his dementia illness.
       In sum, the veteran's account of in-service events is not credible.

R. at 15.

         The appellant raises only one issue on appeal. He makes a policy argument, saying that the
Court should apply an "adverse presumption" where SMRs have been lost or destroyed while in
Government control, thereby requiring the Agency to disprove a claimant's allegation of injury or
disease in service in these particular cases. He argues that an evidentiary imbalance is created by the
Government's negligent destruction of SMRs, and thus he should be entitled to a presumption that
shifts the burden of proof to VA to disprove his alleged in-service brain infection. The appellant
does not rely on a statute or regulation from which the presumption should be inferred but rather asks
the Court to create a presumption based only on general rules of proof that create an unfair
disadvantage and on equitable factors.

        The Secretary argues for affirmance, because, he argues, the appellant has made no factual
or legal challenge to the decision, he does not point to any error by the Board, and he does not take
issue with the plausibility of the Board decision, the evaluation of the evidence, or the reasons or
bases for the Board's decision. He also states that the appellant's policy argument advocating
application of an adverse presumption is misconceived. Furthermore, he argues that, because the
appellant offers no facial challenge to the Board decision, and explicitly waives all procedural issues
on appeal, the appellant has abandoned the opportunity to challenge the Board's findings. Moreover,
the Secretary asserts that the appellant's argument that the burden of proof should shift to the
Secretary in cases where records are lost or destroyed is misconceived because the Court has
previously addressed the issue and VA has acted in accord with the law. Finally, the Secretary
argues that the adoption of an adverse presumption in cases where records are lost or destroyed
would act to shift the burden of proof from the appellant to the Secretary, in contravention of statute.

        This Court has long held that issues not raised on appeal are considered abandoned. See
Disabled Am. Veterans v. Gober, 234 F.3d 682, 688 n.3 (Fed. Cir. 2000) (stating that the court would
"only address those challenges that were briefed"); see also Bucklinger v. Brown, 5 Vet.App. 435
(1993). The appellant explicitly states that he is raising only one issue before the Court. Appellant's
Brief at 6. He makes no argument with respect to the Board's determination that dementia began
many years after service and was not caused by any incident of service. Nor does he challenge the
Board's legal conclusion that dementia was not incurred in or aggravated by service. Moreover, he


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points to no error by the Board with regard to the Board's heightened duty to explain its findings and
conclusions when it is presumed that SMRs were destroyed. See Russo v. Brown, 9 Vet.App. 46,
51 (1996). Furthermore, he makes no attempt in his reply brief to argue against abandonment of the
issues. Because the appellant has not raised any issue contained in the Board decision, those issues
are deemed abandoned, and the Board decision must be affirmed.

         The appellant does, however, make an argument with respect to adverse presumption.
Initially, he relies on Apusento Garden, Inc. v. Superior Court of Guam, 94 F.3d 1346 (9th Cir.
1996), but Apusento is not controlling on this Court, and it is inapposite. The Court notes that it has
previously addressed the issue of lost or destroyed records held by the Government. In O'Hare
v. Derwinski, 1 Vet.App. 365, 367 (1991), the Court held that when SMRs are presumed destroyed,
"the BVA's obligation to explain its findings and conclusions and to consider carefully the benefit-
of-the-doubt rule is heightened." This rule has become well entrenched in the Court’s caselaw.
Stewart v. Brown, 10 Vet.App. 15, 19 (1997); Ussery v. Brown, 8 Vet.App. 64, 68 (1995); Doran
v. Brown, 6 Vet.App. 283, 286 (1994); Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992); Moore
v. Derwinski, 1 Vet.App. 401, 406 (1991). Notably, the Court clarified this rule in Russo, where an
appellant argued that he was entitled to a heightened "benefit of the doubt" because of the destruction
of his SMRs. The Court in Russo stated that established caselaw does "not establish a heightened
<benefit of the doubt,' only a heightened duty of the Board to consider applicability of the benefit of
the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the
veteran's medical records have been destroyed." Russo, 9 Vet.App. at 51. In the present case, the
Board noted the apparent destruction of records. The Board also noted that VA's additional efforts
to obtain records resulted in the discovery of SGO extracts. Furthermore, the appellant has not
complained, before this Court or the Board, that the duty to assist was not satisfied, or that the Board
failed to recognize its heightened duty to consider the benefit of the doubt rule, to assist in
development of the claim, or to explain its decision. See Russo, supra. Thus, because VA met its
duty to assist the appellant, and the appellant made no effort to challenge VA's assistance, the Court
finds that the duty to assist was satisfied.

        The appellant would have this Court develop an adverse presumption against the Secretary
based on the 1973 fire at the NPRC. The appellant relies upon an article that concludes the origin
of the fire was never determined. Walter W. Stender & Evans Walker, The National Personnel
Records Center Fire: A Study in Disaster, 37 THE AMERICAN ARCHIVIST , 521, 544 (1974). There
are existing presumptions for service connection that have been created by Congress and codified
in statute. The existing presumptions recognized in the VA statutory scheme generally relate to
circumstances involving combat. See 38 U.S.C. §§ 1116, 1117, 1118, 1133. The appellant does not
argue that the presumption that he seeks is derivative of any of these presumptions, or is even
implied by any other statute or regulation.

        Furthermore, the Court has acknowledged widely accepted, nonstatutory presumptions
relating to official acts. The presumption of regularity in mailing, and the presumptions of delivery
and receipt are nonstatutory, judicially developed presumptions that avoid wasteful litigation about
routine actions in the absence of clear evidence of nonperformance. See Ashley v. Derwinski, 2


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Vet.App. 62, 65 (1992) (citing multiple United States Supreme Court decisions and holding that the
presumption of regularity applies to official acts of public officers absent clear evidence to the
contrary); see also Matthews v. Principi, 19 Vet.App. 23, 27 (2005) (describing the scope of the
presumption). The appellant does not argue that the presumption he seeks is derivative of these or
any nonstatutory presumption previously recognized by this Court.

         Instead, the appellant argues that an adverse presumption against the Secretary should be
adopted based solely on general principles of evidence and equity. This, the Court is unwilling to
do where the appellant's argument does not apply to the facts of this case. As the appellant concedes,
an adverse-presumption rule has historically been associated with bad-faith destruction of records.
See Morris v. Union Pac. R.R., 373 F.3d 896, 901 (8th Cir. 2004); see also Coates v. Johnson &
Johnson, 756 F.2d 524, 551 (7th Cir. 1985) (stating that bad-faith destruction of a document
pertinent to an issue at trial gives rise to an inference against the party responsible for its
destruction). Although recent cases have held that an adverse inference does not require a showing
of bad faith and recognize that negligent destruction of documents should also be sanctioned in order
to restore the evidentiary balance, the appellant has not demonstrated that either of those
circumstances is present here. See Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)
(recognizing that a rebuttable presumption can be created against the defendant where the defendant
is responsible for the negligent loss or destruction of evidence essential to plaintiff's case); Welsh v.
United States, 844 F.2d 1239, 1248 (6th Cir. 1988); Turner v. Hudson Transit Lines, Inc., 142 F.R.D.
68, 75 (S.D.N.Y. 1991). Again, we reiterate that the appellant has not demonstrated that either bad
faith or negligent destruction of documents was implicated in the 1973 fire at the NPRC. Hence, in
the absence of the necessary factual predicate, we need not decide whether the presumption advanced
by the appellant should be adopted.

        Upon consideration of the foregoing, it is

        ORDERED that the January 15, 2003, Board decision is AFFIRMED.

DATED: July 8, 2005                                             PER CURIAM.




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