Veteranclaims’s Blog

February 10, 2014

FedCir., Stallworth v. Shinseki, No. 2013-7044(Decided: February 10, 2014); § 3.105(d); Physician’s Certification

Excerpt from decision below:

“Stallworth’s assertion that § 3.105(d) can be satisfied only by recitation of the exact language of the regulation in the medical opinion would elevate form over substance.
We thus conclude that nothing in the plain language of § 3.105(d) requires medical opinions to employ the specific language of that regulation. The regulation describes the substance required of the physician’s certifi

8 STALLWORTH v. SHINSEKI

cation, rather than prescribing any magic words that must be employed.”

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

United States Court of Appeals for the Federal Circuit
______________________
RODERICK C. STALLWORTH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7044
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-0952, Judge William A. Moorman.
______________________
Decided: February 10, 2014
______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
TARA K. HOGAN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. With her 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
2 STALLWORTH v. SHINSEKI

CHRISTINA L. GREGG, Attorney, United States Department
of Veterans Affairs, of Washington, DC.
______________________
Before LOURIE, DYK, and TARANTO, Circuit Judges.
LOURIE, Circuit Judge.

Roderick C. Stallworth (“Stallworth”) appeals from the decision of the United States Court of Appeals for Veterans Claims (the “Veterans Court”) affirming the decision of the Board of Veterans’ Appeals (the “Board”) finding no clear and unmistakable error (“CUE”) in an
earlier decision denying restoration of service connection for schizophrenia. See Stallworth v. Shinseki, No. 11-0952, 2012 WL 4882264 (Vet. App. Oct. 16, 2012) (unpublished).
Because the Veterans Court did not err in interpreting the governing regulation and we lack jurisdiction to review the Veterans Court’s application of the regulation to the facts, we affirm.

BACKGROUND
Stallworth served on active duty in the U.S. Army
from May 1974 to July 1975. In March 1975, he experienced
a psychotic episode that was attributed to his illicit
use of the drug LSD. He recovered with hospitalization,
but relapsed following return to active duty. Stallworth’s
service medical records indicate that he was diagnosed
with acute paranoid schizophrenia in April 1975. J.A. 21.
Stallworth was transferred to the Department of Veterans
Affairs (“VA”) Medical Center in Biloxi, Mississippi for
psychiatric treatment, but the treating physician noted
that it was not clear whether Stallworth’s illness was
caused by his drug use or whether he had an independent
psychosis. J.A. 150. In July 1975, Stallworth was separated
from service after an Army medical board found him
unfit for further military duty. In October 1975, a VA
Regional Office (“RO”) awarded Stallworth service connection
for schizophrenia at a 50% disability rating. See In re
STALLWORTH v. SHINSEKI 3

Stallworth, No. 02-18 972, slip op. at 5 (Bd. Vet. App. Dec.
3, 2010).
Stallworth was then frequently admitted to inpatient
psychiatric facilities where medical professionals repeatedly
opined that he had “no mental disorder.” They
included his primary treating physician, who concluded
that Stallworth did not have schizophrenia. Id. at 6. In
March 1977, four staff physicians at the Biloxi VA Medical
Center stated that Stallworth “ha[d] no evidence of a
mental illness and he [was] fully responsible for his
behavior” and was successfully manipulating transfer to
various hospitals through “deceptive practices.” J.A. 33.
The four doctors opined that Stallworth’s service connection
diagnosis was “in error and mistakenly made, when
[it] should have been psychosis with drug or poison intoxication
(other than alcohol) LSD.” Id. Accordingly, the VA
severed Stallworth’s service connection on the basis of
CUE. See In re Stallworth, No. 02-18 972, slip op. at 8.
The RO denied Stallworth’s request to reopen his claim
because of a lack of new evidence, and Stallworth appealed
to the Board.
In 1981, the Board affirmed the denial of restoration
of service connection, concluding that the October 1975
grant was the product of CUE. In re Stallworth, No. 80-
22 526, slip op. at 8–9 (Bd. Vet. App. Jan. 27, 1981). The
Board evaluated the evidence and determined that Stallworth’s
one episode of acute psychosis was secondary to
illicit drug use and resolved without residual effects. Id.
Following years of continuing adjudication, the Board
finally concluded that there was no CUE in the 1981
Board decision, which denied restoration of service connection
based on the correct law and facts available at
that time. In re Stallworth, No. 02-18 972, slip op. at 19.
The Board found the facts distinguishable from Andino v.
Nicholson, 498 F.3d 1370 (Fed. Cir. 2007), in which there
was no indication that the doctor certifying severance had
4 STALLWORTH v. SHINSEKI

reviewed all of the relevant medical records. Id. at 15. The Board found that the doctors who determined that Stallworth’s 1975 service connection diagnosis was clearly erroneous provided an opinion based on all of the accumulated evidence. Id.
Stallworth then appealed to the Veterans Court, arguing that the Board misapplied or misinterpreted § 3.105(d) by failing to recognize that the March 1977 hospitalization report was inadequate to meet the standard for severance of service connection. Stallworth, 2012
WL 4882264 at *3. Stallworth argued that the examining physicians did not certify that the previous diagnosis was clearly erroneous and that the statements relied upon by
the examining physicians did not address all of the accumulated evidence. Id.
The Veterans Court affirmed the Board’s decision,
holding that the Board did not misapply or misinterpret
§ 3.105(d) and that the decision was not arbitrary, capricious,
or otherwise not in accordance with law. Id. at *1.
The court was satisfied with the Board’s explanation of
the evidence showing that “the physicians had found the
prior diagnosis ‘to be in error and mistakenly made’” and
the Board’s finding that the “hospital report was thorough
and accompanied by a summary of the facts, findings, and
reasons supporting the conclusion.” Id. at *6. The court
also found that the Board “analyzed whether the hospital
report evidenced that the physicians took into account the
accumulated evidence available at that time.” Id. at *7.
This appeal followed.

DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We “have
exclusive jurisdiction to review and decide any challenge
to the validity of any statute or regulation or any interpretation
thereof [by the Veterans Court] . . . and to
STALLWORTH v. SHINSEKI 5

interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” Id.
§ 7292(c). We may not, however, absent a constitutional
challenge, “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). We therefore
generally lack jurisdiction to review challenges to the
Board’s factual determinations or to any application of
law to fact. See, e.g., Johnson v. Derwinski, 949 F.2d 394,
395 (Fed. Cir. 1991). But we do have jurisdiction here to
determine the proper interpretation of 38 C.F.R.
§ 3.105(d). Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.
Cir. 2002) (en banc) (superseded on other grounds by Pub.
L. No. 107-330, § 402(a), 116 Stat. 2820 (2002)).
The law permits severance of service connection for
previously awarded disability benefits, i.e., reversing an
earlier finding that a particular disability was connected
to military service and cutting off benefits that had been
awarded based on that finding. Prinkey v. Shinseki, 735
F.3d 1375, 1377 (Fed. Cir. 2013). In particular, § 3.105(d)
provides in relevant part as follows:
A change in diagnosis may be accepted as a basis
for severance action if the examining physician or
physicians or other proper medical authority certifies
that, in the light of all accumulated evidence,
the diagnosis on which service connection was
predicated is clearly erroneous. This certification
must be accompanied by a summary of the facts,
findings, and reasons supporting the conclusion.
Thus, the plain language of the regulation dictates
that service connection may be terminated if a medical
professional certifies that his or her review of all accumulated
evidence indicates that the prior diagnosis is clearly
erroneous. Andino, 498 F.3d at 1372; see also Lockheed
Corp. v. Widnall, 113 F.3d 1225, 1227 (Fed. Cir. 1997)
(“To interpret a regulation we must look at its plain
6 STALLWORTH v. SHINSEKI

language and consider the terms in accordance with their
common meaning.”).
Stallworth argues that the Veterans Court misinterpreted
§ 3.105(d) and failed to follow Andino by affirming
the Board’s reliance upon a medical opinion that failed to
certify that “in light of all accumulated evidence, the
diagnosis upon which service connection was predicated is
clearly erroneous.” Appellant Br. 7. The Secretary responds
that the Veterans Court merely affirmed the
Board’s factual finding that the 1977 medical report did
provide such certification, even though the physicians did
not recite the precise language of § 3.105(d).
We agree with the Secretary. Stallworth essentially argues that Andino obligates the requisite medical authority to use magic words such as “clearly erroneous” when providing an opinion pursuant to § 3.105(d). But this misconstrues our law. In Andino, the decision of the
certifying medical authority was not based on a consideration of all the accumulated evidence. Andino, 498 F.3d at 1373. We therefore held that service connection could
not be severed based on a medical opinion that did not consider all accumulated evidence, but we did not require the use of any particular certifying language. Id.
Stallworth’s case is similar to that of the veteran in Prinkey, in which the Board and the Veterans Court considered all of the evidence of record and found that nothing in § 3.105(d) precluded severance of service connection for diabetes and related disabilities on that
basis. Prinkey, 735 F.3d at 1383. We noted in Prinkey that the Veterans Court did not hold that an inadequate medical opinion could suffice under § 3.105(d) to establish that a prior diagnosis is clearly and unmistakably erroneous, but that the court in that case merely agreed with the Board as a matter of fact that a later medical examination was sufficient, although neither the Board nor the Veterans Court relied exclusively on those later medical
STALLWORTH v. SHINSEKI 7

opinions. Id. Significantly, we declined to require that such certification use language that exactly parroted the regulation.
Here, the Veterans Court likewise found no error in the Board’s determination that severance was based upon a medical report that did consider all of the accumulated evidence and that, in substance, certified that the prior service connection diagnosis of schizophrenia was clearly erroneous without exactly reciting the language of the regulation. There is no contention that the Board failed to use the correct “clearly erroneous” standard in
determining the adequacy of the medical opinion. And although Stallworth contends that the Veterans Court applied the wrong standard, we find that both the Board and the Veterans Court properly recited and applied the correct legal standard: the Board stated that “[s]ervice
connection, once granted, may not be severed unless the grant thereof was clearly and unmistakably erroneous,” J.A. 45, and the Veterans Court stated that [a]lthough the Board did not explicitly state whether the physicians certified that the prior diagnosis was “clearly erroneous,” the Board’s analysis . . . does not indicate to the Court that the Board committed any remandable error by concluding that this language was adequate to meet,
in pertinent part, the requirements of section 3.105(d).
Stallworth, 2012 WL 4882264 at *6. Stallworth’s assertion that § 3.105(d) can be satisfied only by recitation of the exact language of the regulation in the medical opinion would elevate form over substance.
We thus conclude that nothing in the plain language of § 3.105(d) requires medical opinions to employ the specific language of that regulation. The regulation describes the substance required of the physician’s certifi

8 STALLWORTH v. SHINSEKI

cation, rather than prescribing any magic words that must be employed.

CONCLUSION
We have considered Stallworth’s remaining arguments and conclude that they are without merit. Because the Veterans Court did not err in interpreting the governing regulation, we affirm.
AFFIRMED

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