BENNIE C. ROBINSON, Claimant-Appellant
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
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.
Newman, Lourie, and Stoll, Circuit Judges.
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
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.
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.
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).
in 2011, the VA retroactively granted disability benefits to
Mr. Robinson for his coronary artery disease pursuant to a
Nehmer 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.
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
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."
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.
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.
Robinson appeals. We have jurisdiction pursuant to 38 U.S.C.
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.
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 ...