Veteranclaims’s Blog

February 21, 2013

Walker v. Shinseki, No. 2011-7184 (Decided: February 21, 2013); Nexus Test; Service Connection; Chronic Disease; CFR 3.303(b);

Filed under: Uncategorized — veteranclaims @ 6:24 pm

Excerpts from decision below:
“Walker had to satisfy a three element test: (1) the existence of a present disability; (2)in-service incurrence or aggravation of a disease or injury;
and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service – the so-called ‘nexus’ requirement. This three-element test has been approved by this Court, see Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009)(quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004)), and is applied by the Veterans Court, see Arms v. West, 12 Vet. App. 188 (1999). The Board also noted that “if the condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2009).”
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“Service connection” is a term of art that is used in two ways, depending on the context in which the term is expressed.” The term applies to the ultimate entitlement to disability compensation, after a veteran has satisfied the three-element test or the test for entitlement to disability compensation for chronic diseases as set forth in 38 C.F.R. § 3.303(b). The term is also sometimes used to
refer to the second element of the three-element test, namely that a disease or injury was incurred or aggravated while in service. The Secretary has promulgated
6 WALKER v. SHINSEKI

regulations on “Principles relating to service connection” in 38 C.F.R. § 3.303, and in § 3.303(a), stating general principles of service connection, the term is used in both senses. “Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the
Armed Forces, or if preexisting such service, was aggravated therein” (emphasis added). Subsection (a) also refers to “each disabling condition…for which [a veteran] seeks a service connection” and states that “[d]eterminations as to service connection will be based on review of the entire evidence of record.” Satisfaction of the three-element test thus achieves service connection, in
both senses, under § 3.303(a).”
============================

“In short, there is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.
============================

Subsequently, in Groves v. Peake, 524 F.3d 1306, 1309-10 (Fed.Cir. 2008), at least for a chronic disease shown in service, we agreed that absent intercurrent causes § 3.303(b) supplies the medical nexus requirement.
============================

“Walker asserts that the term “chronic disease” in
§ 3.303(b) should be interpreted to apply to any disease
that ordinarily would be considered chronic in the medical
arts. Walker cites Dorland’s Ilustrated Med. Dictionary
359 (32d ed. 2012): a chronic disease is a disease “persisting
over a long period of time.” Further, Walker cites the
definition in the Secretary’s Manual for Developing
Claims for Service Connection for Chronic or Tropical
Diseases, M21-1MR, Part IV, Subpart II, Chapter 1,
Section H: “A chronic disease is a disease of prolonged
duration, producing incapacitating symptoms of varying
degree that may undergo remission, and that is seldom
entirely cured with all residuals of damage being completely
eradicated.” Based on these definitions of chronic
disease, Walker maintains that his father’s bi-lateral
hearing loss qualifies for assessment as a chronic disease
under § 3.303(b).
The Secretary does not disagree with the ordinary definitions of “chronic disease” offered by Walker.
============================

The Secretary
WALKER v. SHINSEK I 11

thus concludes that “every ‘chronic disease’ is persistent or long-lasting, but not every persistent or long-lasting disease is a ‘chronic disease’” for purposes of § 3.303(b).”
============================

“In order to treat all veterans equally, the Secretary interprets § 3.303(b) as implicitly constrained by § 3.309(a) in all chronic disease cases. We think the Secretary’s interpretation is reasonable. The absence of an explicit cross reference to § 3.309(a) in § 3.303(b) neither undermines
the Secretary’s case nor makes Walker’s case. Instead, the absence of the cross reference, given the clear linkage
WALKER v. SHINSEK I 13

of § 3.307(a) and § 3.309(a) to § 3.303, creates ambiguity as to whether § 3.309(a) constrains the application of § 3.303(b) in all, or only some, chronic disease cases.
The Secretary reads § 3.303(b) to provide an alternative path to satisfaction of the standard three-element test for entitlement to disability compensation, but only
for a limited number of identified chronic diseases. For other diseases that might be considered chronic, a veteran must pursue his claim through § 3.303(a), where medical nexus of a relationship between the condition in service and the present condition is required.

============================

“4 The question of whether and to what extent
§ 3.303(b) is constrained by § 3.309(a) is new to this court.
This question has not arisen for adjudication in the limited
number of our cases that have cited § 3.303(b). In one
case, in dictum, we suggested that § 3.303(b) is not so
constrained. See Groves v. Peake, 524 F.3d 1306, 1309 n.1
(Fed. Cir. 2008). That suggestion is incorrect, and the
decisions of the Veterans Court that have extended continuity
of symptomatology under § 3.303(b) to chronic
diseases not enumerated in § 3.309(a) are hereby abrogated.

WALKER v. SHINSEK I 15
============================

We thus reject Walker’s broader argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases. Suggestions or holdings to the contrary in any decisions of the Veterans Court, and dictum to the contrary in our precedent, are incorrect and of no effect.
============================

“Indeed, during supplemental
WALKER v. SHINSEK I 17

briefing in this case, the court was informed that the Secretary is currently considering a substantial revision of his regulations concerning service connection for disability compensation.
============================

United States Court of Appeals for the Federal Circuit
______________________
JAMES E. WALKER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2011-7184
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-2634, Judge Bruce E. Kasold.
______________________
Decided: February 21, 2013
______________________
DAVID S. FORMAN, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, of Washington, DC, argued for
claimant-appellant. With him on the brief was ANITA
BHUSHAN, of Atlanta, Georgia. Of counsel on the brief
were LOUIS J. GEORGE and BARTON F. STICHMAN, National
Veterans Legal Services Program, of Washington, DC. Of
counsel was JESSICA H. ROARK, Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, of Reston, Virginia.
2 WALKER v. SHINSEKI

ALEX P. HONTOS, 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 STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and BRIAN D. GRIFFIN, Attorney,
United States Department of Veterans Affairs, of
Washington, DC.
______________________
Before DYK, CLEVENGER, and WALLACH, Circuit Judges.

CLEVENGER, Circuit Judge.

This case involves a claim for disability compensation
filed by Julius E. Walker (“Mr. Walker”) on April 7, 2007,
for bilateral hearing loss. The Board of Veterans’ Appeals
(“Board”) denied the claim on May 5, 2010. Pending
appeal to the United States Court of Appeals for Veterans
Claims (“Veterans Court”), the claimant died, and his son,
Brig. Gen. James E. Walker (“Walker”), was substituted
as a potential accrued benefits beneficiary. The Veterans
Court affirmed the Board’s denial of the claim for bilateral
hearing loss, and Walker timely appealed to this
court. We have jurisdiction under 38 U.S.C. § 7292 and
for the reasons set forth below, we affirm.
I
Mr. Walker served in the United States Army Air
Force from March of 1943 to November of 1945. His
military Occupational Specialty was a four-engine airplane
pilot, and during service he was a flight instructor.
The Muskogee, Oklahoma Regional Office (“RO”) denied
the 2007 claim, and Mr. Walker appealed to the Board.
The appeal included sworn statements from his son and
wife that his hearing loss began in service and continued
WALKER v. SHINSEK I 3

throughout his life. In support of his appeal, Mr. Walker
was eventually examined by a Department of Veterans
Affairs audiologist on September 17, 2009. The audiologist
was instructed to conduct an examination, and asked
“[i]f hearing loss is diagnosed is it at least as likely as not
due to his military service as a pilot. Please provide
medical rational[e] for opinion provided.”
Because Mr. Walker’s service medical records were
not available due to a fire in the facility housing the
records, the examiner had only information obtained from
Mr. Walker and his grandson, who related Mr. Walker’s
difficulty in hearing and his history of bilateral hearing
loss. The examiner noted that noise exposure in service is
conceded, and diagnosed Mr. Walker as suffering from
bilateral hearing loss that would qualify Mr. Walker for
compensation if he could establish service connection for
the diagnosed condition. The examiner however concluded
that “the veteran’s hearing loss is less likely as not
caused primarily by military service as a pilot.” The
examiner reasoned that Mr. Walker served 60-65 years
ago, and that “[p]resbycusis (age-related hearing loss)
secondary to the veteran’s advanced age cannot be excluded
as the primary etiology for the veteran’s hearing
loss.” The examiner also noted that Mr. Walker was
exposed to recreational noise by hunting game 7-8 times a
year throughout his life without use of any hearing protection.
Based on this examination report, the RO denied
Mr. Walker’s claim.
Mr. Walker appealed to the Board. The Board had
the benefit of statements from Mr. Walker’s wife and son
to the effect that his hearing was normal upon entry into
service, he suffered significant hearing loss in his time as
a flight instructor, and his hearing slowly deteriorated in
the years following his service. Before addressing the
evidence in the case, the Board’s opinion set out the legal
criteria to be applied. In order to obtain disability compensation
under 38 U.S.C. §§ 1110, 1131 and
4 WALKER v. SHINSEKI

38 C.F.R. § 3.303(a), Walker had to satisfy a three element
test: (1) the existence of a present disability; (2)
in-service incurrence or aggravation of a disease or injury;
and (3) a causal relationship between the present disability
and the disease or injury incurred or aggravated
during service – the so-called ‘nexus’ requirement. This
three-element test has been approved by this Court, see
Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009)
(quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.
Cir. 2004)), and is applied by the Veterans Court, see
Arms v. West, 12 Vet. App. 188 (1999). The Board also
noted that “if the condition noted during service is not
shown to be chronic, then generally a showing of continuity
of symptomatology after service is required for service
connection. 38 C.F.R. § 3.303(b) (2009).”

Applying the three-element test to the facts before it,
the Board concluded that the trained audiologist’s opinion
was entitled to more weight than the information Mr.
Walker and his grandson, and his wife and son had supplied.
Age and recreational noise were seen as the more
likely cause of Mr. Walker’s diagnosed bilateral hearing
loss. The Board thus concluded that Mr. Walker failed
under the three-element test to establish service connection
for his bilateral hearing loss. The Board’s opinion did
not indicate whether it also found Mr. Walker’s claim
insufficient under 38 C.F.R. § 3.303(b). Mr. Walker
timely appealed to the Veterans Court, and as noted
above, upon Mr. Walker’s death, his son stepped into his
shoes for purposes of pursuit of his claim for compensation
for bilateral hearing loss.
II
On appeal, Walker argued that the audiologist’s examination was inadequate, for failure to consider and assess the “continuous long-standing symptomatology”
shown by the lay statements of the wife and son, which were not before the examiner. Walker also argued that
WALKER v. SHINSEK I 5

the Board had not properly treated the lay evidence of continuity of symptomatology, and sought a remand to the Board for consideration of that evidence. The Veterans Court affirmed the Board’s decision, also viewing the
case through the prism of the familiar three-part test for service connection. The Veterans Court concluded that the Board had adequately weighed the lay statements by
family members against the factors cited by the medical examiner, and agreed with the medical examiner and the Board that Mr. Walker’s diagnosed hearing loss was more
likely than not due to aging and recreational noise exposure, not to noise exposure during service. The Veterans Court’s decision did not refer to the possibility that Walker could benefit from the provisions of 38 C.F.R. § 3.303(b) by way of continuity of symptomatology. Walker’s request for a remand was denied on the ground that remand is unnecessary where it would result in additional burdens
on the government with no benefit flowing to the veteran.
Walker timely appealed the final decision of the Veterans
Court. The Secretary of Veterans Affairs (“Secretary”)
opposes.
We have jurisdiction under 38 U.S.C. § 7292, which
authorizes this court to interpret regulations issued by
the Secretary. As will be explained below, this appeal
requires us to interpret 38 C.F.R. § 3.303(b).
III
“Service connection” is a term of art that is used in
two ways, depending on the context in which the term is
expressed. The term applies to the ultimate entitlement
to disability compensation, after a veteran has satisfied
the three-element test or the test for entitlement to disability
compensation for chronic diseases as set forth in
38 C.F.R. § 3.303(b). The term is also sometimes used to
refer to the second element of the three-element test,
namely that a disease or injury was incurred or aggravated
while in service. The Secretary has promulgated
6 WALKER v. SHINSEKI

regulations on “Principles relating to service connection”
in 38 C.F.R. § 3.303, and in § 3.303(a), stating general
principles of service connection, the term is used in both
senses. “Service connection connotes many factors but
basically it means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred coincident with service in the
Armed Forces, or if preexisting such service, was aggravated
therein” (emphasis added). Subsection (a) also
refers to “each disabling condition…for which [a veteran]
seeks a service connection” and states that
“[d]eterminations as to service connection will be based on
review of the entire evidence of record.” Satisfaction of
the three-element test thus achieves service connection, in
both senses, under § 3.303(a).
As noted above, the RO,
the Board, and the Veterans Court measured Walker’s
claim for compensation under the three-element test. We
need not dwell further on § 3.303(a), however, because
Walker on appeal has waived any claim to entitlement
under subsection (a).
Walker’s briefs on appeal, and his oral argument, reduce
the appeal to a single question: whether Walker is
entitled to a remand for consideration of service connection
for his diagnosed bi-lateral hearing loss under
38 C.F.R. § 3.303(b). The answer to this question requires
interpretation of the term “chronic disease” as it appears
in § 3.303(b).
Under Walker’s interpretation of the term,
he is entitled to the remand he requests. Under the Secretary’s
interpretation, the Veterans Court correctly denied
the remand request. We thus turn to subsection (b) of
§ 3.303.

IV
Subsection (b) reads as follows:
(b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a
WALKER v. SHINSEK I 7

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.
This does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination
of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.”
When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive
period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to
support the claim.
Unlike subsection (a), which is not limited to any specific condition, subsection (b) restricts itself to chronic diseases. Parsing through the language of the regulation, two situations are revealed. First, there is an explicit rule for when a chronic disease is “shown in service (or within the presumptive period under § 3.307).”1

1 Section 3.307 deals with situations in which the veteran
can show no evidence of a chronic disease during the
8 WALKER v. SHINSEKI

The regulation equates “shown in service” with a reliable diagnosis of the chronic disease while in service.
Mere use of the word “chronic” does not suffice. For a showing in service, “there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.” The regulation is clear that any manifestation of a chronic disease, such as joint pain, etc., will not permit service connection for the chronic disease associated with the manifestation, in that instance, arthritis. To be “shown in service,” the disease identity must be established and the diagnosis not be subject to legitimate
question.
When a veteran satisfies the requirements for a chronic disease shown in service (or within the presumptive period under § 3.307), then all subsequent manifestations
of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Thus if a veteran can
prove a chronic disease “shown in service,” and there are no intercurrent causes, the manifestation of the chronic disease present at the time the veteran seeks benefits establishes service connection for the chronic disease. By treating all subsequent manifestations as service connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and
the condition for which disability compensation is sought.

period of service, but can show a chronic disease that had
become manifest to a degree of 10 percent or more within
a limited time, depending on the particular identity of the
chronic disease, after separation from service. Upon such
showing, the chronic disease “will be considered to have
been incurred in or aggravated by service,” thus satisfying
the second element of the three-element test. Walker
does not seek the benefit of § 3.307 to establish that his
bilateral hearing loss was incurred in service.
WALKER v. SHINSEK I 9

In short, there is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to
explain post-service manifestations of the chronic disease.

Subsection (b) provides a second route by which a veteran
can establish service connection for a chronic disease.
If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the
evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.2

V
Walker contends that the Veterans Court failed to apply
the correct law to his case when it denied him a re-

2 In Savage v. Gober, 10 Vet. App. 488, 495-96 (1997),
the Veterans Court concluded that § 3.303(b) “provid[ed] a
substitute way of showing in-service incurrence and
medical nexus” for purpose of showing the ultimate conclusion
of service connection. In Summers v. Gober, 225
F.3d 1293, 1296 (Fed. Cir. 2000) we noted that “[t]his
court has never affirmed the [Veterans Court’s] understanding
in Savage of the impact of 38 C.F.R. § 3.303(b)
on the medical evidence of nexus requirement.” Subsequently,
in Groves v. Peake, 524 F.3d 1306, 1309-10 (Fed.
Cir. 2008), at least for a chronic disease shown in service,
we agreed that absent intercurrent causes § 3.303(b)
supplies the medical nexus requirement.

10 WALKER v. SHINSEKI

mand to assess the evidence of continuity of symptomatology
of his bilateral hearing loss. Although there is
no evidence of record of a diagnosis of bilateral hearing
loss during service, Walker argues that bilateral hearing
loss was noted in service by his wife and son and he has
presented evidence of continuity of symptomatology
following discharge to link his currently diagnosed bilateral
hearing loss with the hearing loss condition noted in
service. Walker asserts that the term “chronic disease” in
§ 3.303(b) should be interpreted to apply to any disease
that ordinarily would be considered chronic in the medical
arts. Walker cites Dorland’s Ilustrated Med. Dictionary
359 (32d ed. 2012): a chronic disease is a disease “persisting
over a long period of time.” Further, Walker cites the
definition in the Secretary’s Manual for Developing
Claims for Service Connection for Chronic or Tropical
Diseases, M21-1MR, Part IV, Subpart II, Chapter 1,
Section H: “A chronic disease is a disease of prolonged
duration, producing incapacitating symptoms of varying
degree that may undergo remission, and that is seldom
entirely cured with all residuals of damage being completely
eradicated.” Based on these definitions of chronic
disease, Walker maintains that his father’s bi-lateral
hearing loss qualifies for assessment as a chronic disease
under § 3.303(b).

The Secretary does not disagree with the ordinary definitions of “chronic disease” offered by Walker. The Secretary first points to 38 U.S.C. § 1011(3), where Congress
specified that “[t]he term ‘chronic disease’ includes – [41 specifically named chronic diseases] and such other chronic diseases as the Secretary may add to this list.”
Further, the Secretary points to 38 C.F.R. § 3.309(a), which sets forth a specific list of chronic diseases that
includes those identified in the statute. The Secretary
emphasizes that bilateral hearing loss is not on the statutory
list of chronic diseases, nor is it included in the list of
chronic diseases set firth in § 3.309(a). The Secretary
WALKER v. SHINSEK I 11

thus concludes that “every ‘chronic disease’ is persistent or long-lasting, but not every persistent or long-lasting disease is a ‘chronic disease’” for purposes of § 3.303(b).”
Instead, the Secretary interprets § 3.303(b) to have selected out of the complete range of potential chronic diseases, specific ones that qualify for assessment under § 3.303(b). The only chronic diseases that qualify for assessment under § 3.303(b), according to the Secretary, are those listed in § 3.309(a). Because bilateral hearing loss is undeniably not listed in § 3.309(a), the Secretary
maintains that Walker cannot have access to § 3.303(b).
The Secretary’s interpretative analysis considers § 3.303(b) in the context of § 3.307(a) and § 3.309(a), in the light of the interlinkage of those regulations.
Section 3.307(a) deals with presumptive service connection.
As noted above, a veteran is not denied service connection (in either of the two senses) simply because there is no evidence of record of any kind of a chronic
disease while in service. Where a veteran can show manifestation of a chronic disease to a degree of 10 percent or more within stated time periods, § 3.307(a) presumes that the veteran incurred the disease in service, thus establishing service connection in the narrower sense. To achieve service connection in the broader, ultimate, sense, the veteran carries the presumption of service incurrence of a chronic disease back to § 3.303(b).
If the chronic disease was “shown” (i.e. well diagnosed beyond question) in the presumptive period, § 3.303(b) eliminates the nexus requirement on the basis of the
current manifestation of the chronic disease, unless intercurrent causes undermine the automatic connection between the in service showing and the present condition.
The Secretary correctly notes that a veteran seeking ultimate service connection under § 3.303(b) on account of a presumptive service connection can only do so for the chronic diseases that are named in § 3.309(a), because
12 WALKER v. SHINSEKI

§ 3.307(a) states “[n]o condition other than one listed in § 3.309(a) will be considered chronic.”
The same linkage exists between § 3.307(a) and § 3.309(a) in the situation where the veteran cannot establish a chronic disease “shown” in the presumptive
period for purposes of § 3.303(b) but can point to a chronic condition that was noted in the presumptive period but the notation was insufficient to support a diagnosis beyond legitimate question. In that instance, the veteran can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if his chronic disease is one listed in § 3.309(a).
The Secretary recognizes that there is no explicit cross reference to § 3.309(a) stated in § 3.303(b). Walker relies on the lack of such an express linkage to support his view that § 3.303(b) applies to any disease that would be considered “chronic” in medicine. But the absence of a direct linkage, if dispositive, would leave § 3.303(b) standing as a regulation that treats veterans differently, depending on the point in time that their chronic diseases were “shown” or “noted.” Under Walker’s interpretation of “chronic disease” a veteran whose chronic disease is either shown or noted in service would benefit from § 3.303(b) so long as his disease met a medical definition of “chronic,” but a veteran whose chronic disease was shown or noted only in the presumptive period (in the absence of in-service records) would benefit from § 3.303(b) only if his chronic disease is listed in § 3.309(a).
The Secretary argues that such difference in treatment has no reason, and Walker has pointed to none. In order to treat all veterans equally, the Secretary interprets § 3.303(b) as implicitly constrained by § 3.309(a) in all chronic disease cases. We think the Secretary’s interpretation is reasonable. The absence of an explicit cross reference to § 3.309(a) in § 3.303(b) neither undermines
the Secretary’s case nor makes Walker’s case. Instead, the absence of the cross reference, given the clear linkage
WALKER v. SHINSEK I 13

of § 3.307(a) and § 3.309(a) to § 3.303, creates ambiguity as to whether § 3.309(a) constrains the application of § 3.303(b) in all, or only some, chronic disease cases.
The Secretary reads § 3.303(b) to provide an alternative path to satisfaction of the standard three-element test for entitlement to disability compensation, but only
for a limited number of identified chronic diseases. For other diseases that might be considered chronic, a veteran must pursue his claim through § 3.303(a), where medical nexus of a relationship between the condition in service and the present condition is required.
Even though § 3.303(b) does not contain a specific
cross reference to § 3.309(a), we think a harmonious
reading of §§ 3.303(b), 3.307(a) and 3.309(a) supports an
implicit cross reference to § 3.309(a) in § 3.303(b). We are
thus persuaded that the Secretary’s interpretation of the
regulation is correct. 3
For the reasons explained above, we conclude that
properly interpreted, and consistent with the Secretary’s
interpretation, § 3.303(b) is constrained by § 3.309(a),
regardless of the point in time when a veteran’s chronic
disease is either shown or noted, in that the regulation is
only available to establish service connection for the

3 The Secretary advises us that he disagrees with
Savage v. Gober and other Veterans Court decisions in
cases that have extended § 3.303(b), in reliance on Savage
v. Gober, beyond the list of chronic diseases found in
§ 3.309(a). For example, the Veterans Court gave the
benefit of §3.303(b) to a claim for psoriasis in Kent v.
Nicholson, 20 Vet. App. 1 (2006), and to a claim for varicose
veins in Barr v. Nicholson, 21 Vet. App. 303 (2007),
even though neither condition is named as a chronic
disease in § 3.309(a).

14 WALKER v. SHINSEKI

specific chronic diseases listed in § 3.309(a).4 We also
agree with the Secretary’s view that diseases that would
be considered “chronic” in a medical sense, but which are
not listed in § 3.309(a), may qualify for service connection
under the three-element test under § 3.303(a). The primary
difference between a chronic disease that qualifies
for § 3.303(b) analysis, and one that must be tested under
§ 3.303(a), is that the latter must satisfy the “nexus”
requirement of the three-element test, whereas the former
benefits from presumptive service connection (absent
intercurrent causes) or service connection via continuity
of symptomatology.
In addition to arguing that the continuity of symptomatology avenue to service connection under §3.303(b) should be available for chronic diseases not enumerated
in the statute or in the only regulation that lists named chronic diseases, Walker makes a broader argument that continuity of symptomatology is not even restricted to
chronic diseases, but instead is available to gain service connection for any non-chronic disease or injury.
Walker grounds this broader argument on the following language in § 3.303(b): “Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legit-

4 The question of whether and to what extent
§ 3.303(b) is constrained by § 3.309(a) is new to this court.
This question has not arisen for adjudication in the limited
number of our cases that have cited § 3.303(b). In one
case, in dictum, we suggested that § 3.303(b) is not so
constrained. See Groves v. Peake, 524 F.3d 1306, 1309 n.1
(Fed. Cir. 2008). That suggestion is incorrect, and the
decisions of the Veterans Court that have extended continuity
of symptomatology under § 3.303(b) to chronic
diseases not enumerated in § 3.309(a) are hereby abrogated.

WALKER v. SHINSEK I 15

imately questioned.” Walker also points to language in
opinions of the Veterans Court, including Savage v.
Gober, supra, stating generally that continuity of symptomatology
is an alternative way to establish service
connection. Walker further points to dictum in our cases
suggesting that continuity of symptomatology is not
restricted to establishing service connection for chronic
diseases. See, Groves v. Peake, 524 F.3d 1306, 1309 n.1
(Fed. Cir. 2008); Szemraj v. Principi, 357 F.3d 1370, 1376
n.2 (Fed. Cir. 2004).
We first address Walker’s reliance of the language of
the regulation to support his broader claim. Section
3.303(b) is addressed to “Chronicity and continuity.”
The only kind of disease mentioned in the regulation is
chronic disease. The regulation, as parsed above, refers to
chronic diseases that are either “shown in service,” meaning
clearly diagnosed beyond legitimate question, or not
so shown in service. When a “condition noted in service”
is not sufficient to warrant the conclusion that the chronic
disease is “shown to be chronic” in service, continuity of
symptomatology may suffice to establish that the veteran
incurred a chronic disease in service. The natural reading
of the “condition” noted in service is a condition indicative
of a chronic disease, but not sufficiently indicative to
demonstrate that the chronic disease is “shown to be
chronic.” Nothing in § 3.303(b) suggests that the regulation
would have any effect beyond affording an alternative
route for proving service connection for chronic diseases.
The clear purpose of the regulation is to relax the requirements
of § 3.303(a) for establishing service connection
for certain chronic diseases. Walker’s argument that
§ 3.303(b) applies to every disease or condition would
undermine the evidentiary requirement for satisfaction of
the third, or nexus, step in the three-element test under
§ 3.303(a).
The regulatory history predating § 3.303(b) indicates
that continuity of symptomatology is an evidentiary tool
16 WALKER v. SHINSEKI
to aid in evaluation of a chronic disease in service. Sections
3.303 and 3.307 derive in substantial part from
former 38 C.F.R. § 3.80 (1956), which in turn derives from
another regulation, R. & P. R. 1080(A), that incorporated
continuity of symptomatology in 1947. R. & P. R. 1080(A)
provided:
When the etiological identity is perfect . . . there is
no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only
where the condition noted during service is not in
fact shown to be chronic or where the diagnosis of
chronicity may be legitimately questioned. When
the fact of chronicity during service is not, in the
opinion of the adjudicating agency, adequately
supported, then there may be reason to require
some showing of continuity after discharge to
support the claim.
See also 38 C.F.R. § 3.80 (1956) (containing similar language).
This regulatory history demonstrates that the
same language in § 3.303(b) to which Walker points has
been in the operative regulations for service connection
for chronic diseases since at least 1947. The correct understanding
of the “condition noted during service” is that
the condition is one that is indicative of but not dispositive
of a chronic disease.
We thus reject Walker’s broader argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases. Suggestions or holdings to the contrary in any decisions of the Veterans Court, and dictum to the contrary in our precedent, are incorrect and of no effect.
The Secretary is free to amend § 3.309(a) if he determines that chronic diseases beyond those currently listed should benefit from the application of § 3.303(b).
See 38 U.S.C. § 1101(3). Indeed, during supplemental
WALKER v. SHINSEK I 17

briefing in this case, the court was informed that the Secretary is currently considering a substantial revision of his regulations concerning service connection for disability compensation.

VI
Because Walker seeks compensation for a condition that is not listed as a chronic disease in § 3.309(a), his claim cannot be processed under § 3.303(b).5 For that
reason, it was not error for the Veterans Court to deny Walker’s request for a remand to the Board to conduct a § 3.303(b) assessment of the facts of record. Walker’s claim for relief under § 3.303(a) was judged against him by the Board and the Veterans Court, and he limited his appeal to his chances under § 3.303(b). For the reasons set forth above, we affirm the final decision of the Veterans
Court.

AFFIRMED

COSTS
No costs.
5 Under Savage v. Gober, and its progeny, cases with
which the Secretary has expressed disagreement, the
continuity of symptomatology test requires not only
showing the continuity, but showing a medical nexus
between the current condition on which the claim is
staked and the continuity of symptomatology. Savage v.
Gober, 10 Vet. App. at 498. We do not opine on how
§ 3.303(b) operates in practice, and we emphasize that the
only issue regarding § 3.303(b) on which we rule today is
that the regulation benefits only chronic diseases listed in
§ 3.309(a).

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