Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Robinson v. Wilkie

United States Court of Appeals, Federal Circuit

October 4, 2018

BENNIE C. ROBINSON, Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

          Appeal from the United States Court of Appeals for Veterans Claims in No. 16-427, Chief Judge Robert N. Davis.

          Kenneth M. Carpenter, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant. Also represented by Virginia A. Girard-Brady, Jamie Marie Atwood, ABS Legal Advocates, P.A., Lawrence, KS.

          Michael Anthony Rodriguez, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Represented by Melissa Baker, Chad A. Readler, Robert E. Kirschman, Jr., Claudia Burke; Brian D.

          Griffin, Christopher O. Adeloye, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

          Before Newman, Lourie, and Stoll, Circuit Judges.

          OPINION

          STOLL, CIRCUIT JUDGE.

         Mr. Bennie Robinson, a veteran who served in Vietnam as a member of the United States Marine Corps, appeals the effective date of his disability rating for coronary artery disease. Mr. Robinson's effective date coincides with the date of his diagnostic testing results, but it took 14 months to schedule the tests. According to Mr. Robinson, he should be entitled to an earlier effective date because he did not cause the 14-month delay. Because there was no legal error in determining the effective date, we affirm the judgment of the United States Court of Appeals for Veterans Claims ("Veterans Court").

         I

         Mr. Robinson served in the Marine Corps in the late 1960s, and his service included a deployment in Vietnam. After returning from deployment, he began to suffer heart problems. Mr. Robinson saw his Department of Veterans Affairs cardiologist, Dr. Ali Sadoughian, on February 23, 2006, for "evaluation of chest pain." J.A. 71.

         Dr. Sadoughian recommended that Mr. Robinson undergo diagnostic testing, but the testing was not performed. Nine months later, Mr. Robinson returned to Dr. Sadoughian after spending a week in the hospital with blood clots in his right leg. Dr. Sadoughian again recommended that Mr. Robinson schedule diagnostic testing "as planned in my previous consult." J.A. 69-70. Mr. Robinson finally received the prescribed diagnostic testing on April 2, 2007-5 months after his follow-up visit and 14 months after Dr. Sadoughian's initial recommendation. The record does not explain the cause of the delay, but the test results indicated that Mr. Robinson had "[c]oronary artery disease with prior inferior wall myocardial infarction." J.A. 67.

         Mr. Robinson did not receive any disability benefits at that time for his coronary artery disease because he could not establish that it was service connected. That changed in August 2010 when the VA amended its regulations to add ischemic heart disease-including coronary artery disease-to its list of conditions that are presumptively service connected for veterans who were exposed to certain herbicides. 75 Fed. Reg. 53, 202, 53, 216 (Aug. 31, 2010) (amending 38 C.F.R. § 3.309(e) to add coronary artery disease to list of diseases associated with certain herbicide agents); see 38 C.F.R. § 3.309(e) (creating presumption of service connection for veterans with coronary artery disease who were exposed to certain herbicide agents).

         Then, in 2011, the VA retroactively granted disability benefits to Mr. Robinson for his coronary artery disease pursuant to a Nehmer[1] review. See J.A. 38; J.A. 78-82. The VA assigned an initial disability rating of 10 percent from January 18, 2005 and a 60 percent disability rating from April 2, 2007-the date Mr. Robinson's diagnostic testing showed that he had coronary artery disease.

         After Mr. Robinson filed a notice of disagreement, the VA issued a new rating decision. That decision awarded Mr. Robinson a 100 percent disability rating effective January 26, 2003 and a 10 percent disability rating from May 1, 2003 through April 1, 2007. The VA did not change the effective date for the 60 percent disability rating, however, and Mr. Robinson appealed that decision to the Board of Veterans' Appeals. The Board denied Mr. Robinson's claim because the April 2007 test results were the earliest medical evidence demonstrating that he satisfied the criteria for a 60 percent disability rating.

         Mr. Robinson appealed the Board's decision to the Veterans Court. On appeal, Mr. Robinson argued for the first time that the effective date for his 60 percent disability rating should be the date Dr. Sadoughian ordered the diagnostic testing rather than the date on which the testing occurred. Although the cause of delay is not reflected in the record, Mr. Robinson asserted that he should not be penalized for the 14-month delay in scheduling his test, and that he would have received an earlier effective date for his 60 percent disability rating if the VA had provided him with prompt treatment. The Secretary asked the Veterans Court not to consider the argument because Mr. Robinson did not raise it before the Board. Instead, the Veterans Court "balance[ed] the competing interests" and "determine[d] that it [wa]s appropriate to remand this matter for the Board to address in the first instance." J.A. 39.

         On remand, Mr. Robinson cited 38 C.F.R. § 17.33(a)(2)'s requirement that veterans receive "prompt and appropriate treatment" in arguing that his effective date should be the date on which Dr. Sadoughian ordered the testing. J.A. 27. The Board concluded that § 17.33 applies only to medical treatment and has "no bearing on the law or regulations governing effective date criteria." J.A. 30. Moreover, the Board could not identify any evidence in the record that would support an earlier effective date for Mr. Robinson's 60 percent disability rating. Accordingly, the Board denied Mr. Robinson's claim.

         The Veterans Court affirmed the Board's decision. Applying 38 C.F.R. § 3.816, the Veterans Court explained that "the effective date of an award of disability compensation will be the date the claim is received by [the] VA or the date the disability arose, whichever is later." Robinson v. Shulkin, No. 16-0427, 2017 WL 1046285, at *1 (Vet.App. Mar. 20, 2017) (citing 38 C.F.R. § 3.816(c)(1), (c)(2)) ("Veterans Court Opinion"). The Veterans Court agreed with the Board that "an effective date earlier than April 2007 was not warranted because '[t]he treatment records do not demonstrate that [Mr. Robinson] met the criteria for a 60[%] rating for coronary artery disease until . . . testing was accomplished on April 2, 2007.'" Id. at *2 (alterations in original) (quoting J.A. 30). And even if § 17.33 imposed on the VA a requirement that veterans be treated in a timely manner, the Veterans Court detected no clear error in the Board's effective date determination because no medical evidence prior to April 2007 supported a 60 percent disability rating.

         Mr. Robinson appeals. We have jurisdiction pursuant to 38 U.S.C. § 7292.

         II

         Our jurisdiction to review decisions of the Veterans Court is limited. Martin v. O'Rourke, 891 F.3d 1338, 1342 (Fed. Cir. 2018). We have jurisdiction to "decide all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1). But absent a constitutional issue, we "may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." Id. § 7292(d)(2).

         Mr. Robinson contends that he is entitled to an earlier effective date for his 60 percent disability rating for three interrelated reasons. First, Mr. Robinson asserts that his 60 percent disability rating is a staged or increased rating and therefore 38 C.F.R. § 3.816(c) does not apply. We do not find this argument compelling because the April 2, 2007 effective date for Mr. Robinson's 60 percent disability rating was part of his initial grant of benefits in March 2011. As the Secretary argues, "[t]his places his claim within the ambit of section 3.816(c)." Appellee Br. 13. Moreover, § 3.816 is titled "Awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure," and its express purpose is to "state[] effective-date rules required by orders of a United States district court in the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.