Veteranclaims’s Blog

July 31, 2017

FedCir. Application; 38 C.F.R. § 3.304(f)(5); Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011) (interpreting § 3.304(f)(5) to permit medical opinion evidence to corroborate the occurrence of a stressor); Harmless Error;

Excerpt from decision below:

“Mr. Spangler appealed, arguing that the Board erred by failing to address 38 C.F.R. § 3.304(f)(5) and Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011)(interpreting § 3.304(f)(5) to permit medical opinion
evidence to corroborate the occurrence of a stressor).”

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

“The Veterans Court found that the Board erred by failing to cite § 3.304(f)(5) and Menegassi, which both explain that “medical opinion evidence may be submitted
SPANGLER v. SHULKIN 5
for use in determining whether the occurrence of a stressor is corroborated.” 638 F.3d at 1382.”

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

 

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
______________________
PAT G. SPANGLER,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1164
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4192, Judge Margaret Bartley.
______________________
Decided: July 25, 2017
______________________
ROBERT CHARLES BROWN, JR., Tommy Klepper & Associates,
PLLC, Norman, OK, for claimant-appellant.
ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represented
by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
MARTIN F. HOCKEY, JR.; Y. KEN LEE, MARTIE ADELMAN,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 SPANGLER v. SHULKIN
______________________
Before LOURIE, MOORE, and HUGHES, Circuit Judges.
PER CURIAM.
Pat G. Spangler appeals from a decision by the United
States Court of Appeals for Veterans Claims affirming the
Board of Veterans’ Appeals’ denial of benefits under
38 U.S.C. § 1110. Because the Veterans Court did not err
in finding the Board only committed harmless error, we
affirm.
I
Mr. Spangler served on active duty in the United
States Marine Corps from December 1974 to December
1975. According to his service personnel records, he was
disciplined twice for failing to report to muster and once
for refusing a lawful order to go to bed. He was discharged
under honorable conditions after refusing surgery
for a right inguinal hernia.
In 1986, Mr. Spangler was hospitalized at Eastern
State Hospital in Vinita, Oklahoma for psychiatric evaluation.
Both he and his mother reported this as his first
mental health inpatient treatment. He also reported that
he suffered a hernia in service during calisthenics. When
he was discharged from the hospital eight months later,
he was diagnosed with a mood disorder and possible
depression.
In 1989, Mr. Spangler filed a claim for service connection
for PTSD and a nervous disorder associated with
service in Vietnam. His claim was denied because his
service medical records did not reflect a nervous condition
in service and because he never served in Vietnam.
In 1991, Mr. Spangler filed a claim with the Department
of Veterans Affairs (VA) for non-service-connected
pension benefits. During his VA examination, he reported
SPANGLER v. SHULKIN 3
that he had been diagnosed with bipolar disorder and first
received psychiatric treatment in 1986 at Eastern State
Hospital. His claim was approved. In 1992, he reported
to a VA physician that he was discharged from the Marines
due to conflicts with supervisors and behavior
issues.
In 1993, Mr. Spangler was readmitted to Eastern
State Hospital for psychiatric evaluation and treatment.
His mother reported that he was first admitted to a
psychiatric facility in 1986 or 1987.
In 2002, Mr. Spangler was admitted to the Griffin
Memorial Hospital in Norman, Oklahoma due to visual
hallucinations. He reported that he was discharged from
the military because of a psychotic episode.
In 2006, Mr. Spangler requested that the VA reopen
his previously denied claim for service connection for a
nervous condition. He submitted a private medical record
reflecting his report that his drill instructor stomped on
his hand during basic training, and submitted other
statements indicating that this incident was the cause of
his in-service hernia. He also stated that while he was in
service he received discipline for getting into several
serious fights, and that “he threw a wrench at a four-star
general’s head and was subsequently beaten with nunchucks
by a Special Forces soldier, forcibly placed under
hypnosis to forget the beating, and ordered to deny ever
having been in the Marine Corps.” J.A. 4. The regional
office denied service connection for manic depressive
disorder, schizophrenia, and an emotional disorder, and
declined to reopen previously denied claims for service
connection for bipolar disorder and PTSD.
In 2011, Mr. Spangler requested that the VA reopen
his claim for service connection for PTSD. He stated that
he received psychiatric treatment immediately following
service, and his mother and sister submitted corroborating
statements. The regional office concluded that records
4 SPANGLER v. SHULKIN
of that psychiatric treatment were not available and
denied reopening of the claim for service connection for
PTSD. Mr. Spangler appealed to the Board.
In conjunction with his appeal, Mr. Spangler submitted
several reports from private doctors diagnosing him
with PTSD due to abuse during the military. These
diagnoses were based on Mr. Spangler’s statements
regarding the drill instructor incident and his report that
he had been undergoing psychiatric treatment since he
was 18 years old.
In 2015, the Board denied service connection for
PTSD or a nervous condition. The Board did not find Mr.
Spangler’s statements regarding in-service stressors
credible and concluded that the private medical opinions
relying on those statements therefore lacked probative
value. Mr. Spangler appealed, arguing that the Board
erred by failing to address 38 C.F.R. § 3.304(f)(5) and
Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011)
(interpreting § 3.304(f)(5) to permit medical opinion
evidence to corroborate the occurrence of a stressor).
The Veterans Court agreed that the Board had erred
by failing to address these authorities, but concluded that
the error was harmless. Mr. Spangler appeals.
II
We have exclusive jurisdiction to decide appeals that
challenge a decision of the Veterans Court with respect to
a rule of law, including the interpretation or validity of
any statute or regulation. 38 U.S.C. § 7292 (d)(1). However,
we do not have jurisdiction to review a factual
determination or a law or regulation as applied to the
facts of a particular case, except to the extent an appeal
presents a constitutional issue. Id. § 7292(d)(2).
The Veterans Court found that the Board erred by
failing to cite § 3.304(f)(5) and Menegassi, which both
explain that “medical opinion evidence may be submitted
SPANGLER v. SHULKIN 5
for use in determining whether the occurrence of a stressor
is corroborated.” 638 F.3d at 1382. Nevertheless, the
Veterans Court found that the Board’s error was harmless
“because the Board considered the positive medical opinions
of record linking PTSD to the claimed in-service
stressors and properly rejected them because they were
based on the veteran’s non-credible reports of those
stressors.” J.A. 9.
Mr. Spangler argues that the Veterans Court was required
to issue a remand order rather than finding that
the Board committed harmless error. We disagree. The
Veterans Court properly found that the Board performed
the proper legal analysis. The Board noted in its opinion
that it must “weigh the lay and medical evidence submitted,”
J.A. 62, and explicitly considered the private medical
diagnoses, see J.A. 67–70. Further, because we do not
have jurisdiction to review factual issues, we cannot
review the Veterans Court’s conclusion that the Board
reached the correct result after weighing the evidence.
III
We have considered Mr. Spangler’s remaining arguments
but find them unpersuasive. Because the Veterans
Court’s decision is free from legal error, we affirm.
AFFIRMED
No costs.

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