Webster v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

__________________________

ELIZABETH WEBSTER,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellee.

__________________________

2011-7007

__________________________

Appeal from the United States Court of Appeals for

Veterans Claims in Case No. 08-2940, Judge Robert N.

Davis.

___________________________

Decided: June 15, 2011

___________________________

PETER J. SEBEKOS, Law Office of Peter J. Sebekos, of

Niagara Falls, New York, argued for claimant-appellant.

L. MISHA PREHEIM, Attorney, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, of Washington, DC, argued for respondent-

appellee. With him on the brief were TONY WEST, Assis-

WEBSTER v. DVA 2

tant Attorney General, JEANNE E. DAVIDSON, Director,

and KIRK T. MANHARDT, Assistant Director. Of counsel on

the brief were DAVID J. BARRANS, Deputy Assistant Gen-

eral Counsel and JONATHAN E. TAYLOR, Attorney, United

States Department of Veterans Affairs, of Washington,

DC.

__________________________

Before RADER, Chief Judge, LOURIE, and BRYSON, Circuit

Judges.

PER CURIAM.

Elizabeth Webster, the widow of a veteran, seeks

compensation based on her husband’s death, which she

contends was service-connected. In this appeal, she

argues that the Court of Appeals for Veterans Claims

(“the Veterans Court”) improperly rejected her contention

that the Board of Veterans’ Appeals should have ordered

a medical opinion to be prepared in connection with her

claim. We affirm.

Mrs. Webster’s husband, Gary L. Webster, served in

Vietnam during the 1960s as an active duty member of

the United States Army. He died of pancreatic cancer in

1998. Mrs. Webster subsequently sought Dependency

and Indemnity Compensation benefits for his death based

on her assertion that his death was service-connected.

Her theory of service connection was that Mr. Webster’s

exposure, while in Vietnam, to herbicides including Agent

Orange ultimately caused the pancreatic cancer that

resulted in his death.

After proceedings before a regional office of the De-

partment of Veterans Affairs (“DVA”) and the Board of

Veterans’ Appeals, followed by a remand from the Veter-

ans Court for readjudication, the Board denied Mrs.

3 WEBSTER v. DVA

Webster’s request for compensation. As part of its deci-

sion, the Board ruled, based on the evidence before it, that

the DVA was not required to obtain a medical opinion

with respect to the service-connection issue. The Board

also held that the DVA had not violated its duty to assist

the claimant because, based on the development of the

case already undertaken, there was “no reasonable possi-

bility that further assistance will aid in substantiating

her claim.”

The Board noted that Mr. Webster’s disease did not

manifest itself until more than 20 years after his separa-

tion from service and concluded that “the record does not

contain any objective medical evidence that indicates that

[his disease was] linked to his period of active military

service, including herbicide and/or pesticide exposure

during service in the Republic of Vietnam.” The Board

held that medical treatise evidence submitted by Mrs.

Webster was general in nature and insufficient to support

her claim of causation.

Mrs. Webster appealed that decision to the Veterans

Court. She argued that the DVA had violated its duty to

assist her when it failed to order a medical opinion that

might support her claim. The court noted that the DVA is

not required to order a medical opinion if “no reasonable

possibility exists that the medical opinion would aid in

substantiating her claim.” Because the court concluded

that a medical opinion would not aid Mrs. Webster in

substantiating her claim, the court rejected her argument

that an opinion should have been ordered.

On appeal to this court, Mrs. Webster does not dis-

agree with the “no reasonable possibility” test articulated

by the Veterans Court. Rather, she argues that the court

erroneously relied on outdated precedents from before the

WEBSTER v. DVA 4

enactment of the Veterans Claims Assistance Act of 2000

(“VCAA”), which expanded the scope of the DVA’s duty to

assist claimants. Under the proper standard, she con-

tends, the treatise evidence that she submitted should

have been regarded as sufficient to trigger the DVA’s duty

to order a medical opinion regarding the question whether

Mr. Webster’s disease was caused by his exposure to

Agent Orange.

Mrs. Webster objects to the Veterans Court’s citation

of cases dealing with the “well-grounded claim” rule,

which at one time imposed a heavy evidentiary burden on

claimants before the DVA’s duty to assist the claimants

would be triggered. See Wallin v. West, 11 Vet. App. 509

(1998); Beausoleil v. Brown, 8 Vet. App. 459 (1996).

Congress abolished that rule in the VCAA and made clear

that the DVA had a duty to assist claimants unless no

reasonable possibility exists that such assistance would

aid in substantiating their claims. 38 U.S.C.

§ 5103A(a)(2); Wood v. Peake, 520 F.3d 1345, 1348 (Fed.

Cir. 2008); see also Waters v. Shinseki, 601 F.3d 1274,

1278-79 (Fed. Cir. 2010).

Mrs. Webster’s objection to the court’s reference to the

well-grounded claim rule is well taken. That rule has

been legislatively overturned, and references to the stan-

dards that were used in applying that rule risk creating

confusion regarding the standard that applies to the

DVA’s responsibilities under the duty to assist imposed by

the VCAA. In this case, however, the citation of the “well-

grounded claim” cases in the Veterans Court’s opinion is

harmless, as it does not indicate that the court actually

applied an incorrect standard. The court articulated the

correct standard when it stated that a medical opinion is

not required if “no reasonable possibility exists” that the

opinion would aid in substantiating the claim, and the

5 WEBSTER v. DVA

language that the court cited from the “well-grounded

claim” cases is not inconsistent with that test. Thus, the

court stated that the treatise evidence was “general in

nature” and that such evidence must not be “speculative”

and “inconclusive.”

Mrs. Webster particularly objects to the court’s state-

ment that the treatise evidence “lacks the ‘degree of

certainty’ required by our prior caselaw.” While the

court’s allusion to the “prior caselaw” appears to refer to

the “well-grounded claim” cases, which do not set forth

the correct standard for assessing the DVA’s duties under

the VCAA, the phrase quoted by the court is itself not

incorrect as applied to the particular issue in this case.

The court’s reference to the “degree of certainty” is taken

from a sentence in an earlier case providing that medical

treatise evidence is sufficient to trigger the DVA’s duty to

assist if it “discusses generic relationships with a degree

of certainty such that, under the facts of a specific case,

there is at least plausible causality based upon objective

facts.” Wallin, 11 Vet. App. at 514, quoting Sacks v. West,

11 Vet. App. 314, 317 (1998). We do not regard that

statement, at least as applied in this case, to be inconsis-

tent with the “no reasonable possibility” standard earlier

stated by the court. That is particularly true in light of

the court’s observation that the Board found the treatise

evidence to be “speculative, general, and inconclusive,”

and the court’s ultimate ruling that a medical opinion

could not assist Mrs. Webster in substantiating her claim.

On this record, while we do not endorse the reference

to cases invoking the well-grounded claim rule in the

context of a case involving the post-VCAA duty to assist,

we conclude that the court’s reference to several of its

previous well-grounded claim cases did not have the effect

of altering the court’s application of the proper standard,

WEBSTER v. DVA 6

which it articulated at the outset of its discussion of the

treatise issue. Because, in this context, our jurisdiction is

limited to review of the legal principles and rules applied

by the Veterans Court, we do not address the question

whether the court correctly held that, under the proper

legal standard, the particular evidence submitted in this

case should have been deemed sufficient to require the

DVA to order a medical opinion.

No costs.

AFFIRMED