King v. Dept. Of Veterans Affairs

United States Court of Appeals

for the Federal Circuit

__________________________

NATHAN KING,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellee.

__________________________

2011-7159

__________________________

Appeal from the United States Court of Appeals for

Veterans Claims in Case No. 09-4533, Judge Ronald M.

Holdaway.

____________________________

Decided: December 5, 2012

____________________________

MICHAEL LAWRENCE VARON, of White Plains, New

York, argued for claimant-appellant.

MICHAEL D. AUSTIN, Trial Attorney, Commercial Liti-

gation Branch, Civil Division, United States Department

of Justice, of Washington, DC, argued for respondent-

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

tant Attorney General, JEANNE E. DAVIDSON, Director,

and REGINALD T. BLADES, JR., Assistant Director. Of

counsel on the brief were DAVID J. BARRANS, Deputy

KING v. SHINSEKI 2

Assistant General Counsel, and AMANDA R. BLACKMON,

Attorney, United States Department of Veterans Affairs.

__________________________

Before RADER, Chief Judge, O’MALLEY, and WALLACH,

Circuit Judges. Dissenting opinion filed by Circuit Judge

O’MALLEY.

RADER, Chief Judge.

The United States Court of Appeals for Veterans

Claims affirmed the decision of the Board of Veterans

Appeals affirming the denial of Nathan King’s claim for

compensation benefits for his back and bilateral hip

conditions. On appeal to this court, Mr. King contends

that the Veterans Court erred by discounting lay testi-

mony offered by Mr. King and his wife. Because, as a

preliminary matter, the Veterans Court did not fail to

consider Mr. King’s proffered lay evidence, this court

lacks jurisdiction over Mr. King’s contention, which is

merely a challenge to the weight given his evidence.

I

A Department of Veterans Affairs (“VA”) regional of-

fice awarded Mr. King disability compensation for residu-

als of a left knee surgery and right knee arthritis. Mr.

King later sought disability compensation for disabilities

of the back and hips on a direct basis and as secondary to

his service-connected knee disabilities. In support of his

claim, Mr. King stated that he developed disabilities of

the back and hips as a result of falls and movement

adjustments attributed to his service-connected knee

disabilities.

Mr. King testified before the Board during a Decem-

ber 2, 1998 hearing. Mr. King described continuing

problems with his left knee, including incidents of insta-

3 KING v. SHINSEKI

bility beginning “a couple of months after the service.”

A13. He further described the onset of his back pain,

ongoing symptoms, discussions with VA physical thera-

pists, and the results of an MRI on his back. Mr. King

also described his abnormal gait and its effect on his body.

He explained that, “[b]ecause my knees hurt and because

my back has a tendency, if I don't walk right, to get loud

with me, I would put more weight on each hip as I walk. I

kind of overcompensate because I don't want to have the

pain there.” A16.

In support of Mr. King’s claim, on November 30, 1998,

Mr. King’s wife also presented a two-page letter to the

VA. In her statement, which was included in the hearing,

Mrs. King explained that she was not a medically trained

professional; however, as a school teacher, she was keenly

aware of behavioral changes from her experience observ-

ing and recognizing changes in students’ performance,

physical well-being, and attitude toward assigned tasks.

Mrs. King explained that, after living with Mr. King for

twenty years, “. . . I have watch[ed] [Mr. King's] physical

abilities deteriorate over the years, mainly because of his

knees, back and hips.” A8. She further described Mr.

King’s progressive decrease in ability to do home repairs

and that his general activity was increasingly limited.

Mrs. King also opined that Mr. King’s back and hip prob-

lems were caused by his knee injuries. A8–9.

The record in this case shows, however, that medical

professionals were skeptical about the relationship be-

tween his knee injury and his back and hip conditions.

Service medical records revealed no treatment for back or

hip problems during Mr. King's active duty service from

February 1973 to June 1974. Post-service medical records

indicate that x-rays of the hips, in 1996, revealed bilateral

well-corticated ossific densitities of the hips, which were

most likely osteophytes. A 1996 MRI of the lumbar spine

KING v. SHINSEKI 4

revealed mild disc desiccation with central posterior disc

herniation at the L4-L5 disc level, and mild disc desicca-

tion with symmetrical disc bulge at the L3-L4 level. A

1997 MRI of the hips revealed mild degenerative arthritis

bilaterally, with no evidence of avascular necrosis. Mr.

King was diagnosed with herniated nucleus pulposus of

L4-L5 with multiple disk bulges of the lumbosacral spine

and degenerative joint disease of both hips in 1997.

Mr. King underwent a VA spine examination in 2000.

The examiner diagnosed Mr. King’s minimal degenerative

joint disease of both hips and lumbosacral spine. The

examiner related Mr. King’s conditions to his age. He

explained that Mr. King’s knee injury, specifically his left

postoperative anterior cruciate ligament reconstructive

condition of the knee, was not the type of injury that

causes the back and hip problems Mr. King experienced.

He also noted that Mr. King had symptomatology refer-

able to a chronic pain syndrome with possible psychoso-

matic overlays. A VA medical examiner’s subsequent

examination in 2003 did not further opine on the etiology

of Mr. King's back and hip conditions.

A private medical physician, Dr. Dashiff, disagreed

that Mr. King’s hip and back conditions were age-related.

In a 2000 letter, he opined that Mr. King’s knee problems

caused the hip and lower back problems. Dr. Dashiff

opined that he reached this conclusion in the absence of

any defined trauma or occupational hazard to account for

those other problems. Dr. Dashiff further stated that

studies had made clear the significant effect of weight

bearing on the lumbar spine. He noted that Mr. King’s

1997 MRI revealed only mild desiccation, which strongly

suggested that injuries to Mr. King's back were not of

longstanding duration, but were recent. Dr. Dashiff

offered the opinion that, because only mild arthritic

changes were revealed in Mr. King's hips, and because the

5 KING v. SHINSEKI

hip joints are between the knee and lumbar spine, Mr.

King's hips were subjected to abnormal forces that re-

sulted from his knee injuries and subsequent off-loading

to ameliorate knee symptoms.

In a 2006 report, the VA Chief of Orthopedics again

reported on examinations he conducted in 2000 and 2003.

Regarding the 2000 examination, the examiner noted an

absence of important bridging symptoms in Mr. King's

back, linking such findings to aging processes rather than

to his bilateral knee condition. Regarding Mr. King’s hip

condition, the VA examiner reported during a 2003 ex-

amination that only very minimal degenerative arthritis

was revealed, which he stated, was age-related and sub-

stantiated by few abnormal findings. The examiner thus

concluded that Mr. King’s bilateral hip and back disabili-

ties were not related to his bilateral service-connected

knee conditions.

In 2007, the Board denied Mr. King's appeal. He ap-

pealed that determination to the Veterans Court. The

parties filed a joint motion for remand, which the court

granted. On remand, additional evidence was developed

and associated with the record.

In 2008, the Board obtained a medical opinion from a

Veterans Hospital Administration (VHA) orthopedist.1

Based on his review of the record, the VHA examiner

opined that it was not likely that Mr. King’s back and

bilateral hip disabilities were either directly caused or

permanently worsened as a consequence of the service-

connected knee disabilities. The VHA examiner con-

cluded that the mild symmetrical changes in Mr. King’s

1 In its opinion, the Veterans Court refers to this as

an opinion from an independent medical examiner (IME).

For consistency, we refer to it as the opinion of the VHA

examiner.

KING v. SHINSEKI 6

hips reflected expected changes from the aging process.

The VHA examiner explained that, in order for the hip

condition to be associated with the knee condition, it

would have to have occurred in a progressive and persis-

tent manner from his period of service, rather than be-

ginning twenty years after his service. Regarding Mr.

King’s back condition, the VHA examiner noted Mr.

King’s multiple level (L4-L5 and L3-L4) spine desiccation,

as revealed in the 1996 MRI, reflected the effects of aging

rather than load transfer from an adjacent limb or joint.

The VHA examiner stated that the record contained no

evidence for the permanent worsening of Mr. King’s back

or hip conditions.

In 2009, Mr. King submitted a 2004 treatise article,

which addressed the question of a relationship between

limping and back symptoms, noting that a limp can in

some specific instances cause back pain and aggravate

preexisting back pain.

In 2009, the Board denied Mr. King’s appeal. In its

analysis of the record, the Board determined that this

case presented conflicting medical opinion evidence, and,

consequently, that it was required to determine the

relative probative value and weight to be accorded these

opinions. The Board then reviewed case law applicable to

its review of the medical opinion evidence.

The Board first considered the favorable medical opin-

ion of Dr. Dashiff, but concluded that his opinion was of

limited probative value. The Board found that the basis

for Dr. Dashiff’s opinion was unclear because it was not

apparent that Dr. Dashiff proffered his opinion based

upon a review of either the claims file or other records in

the file. The Board, moreover, noted that Dr. Dashiff did

not indicate that his opinion was based on any period of

prior treatment or other opportunity during which he

7 KING v. SHINSEKI

evaluated Mr. King’s claimed back and hip disabilities.

The Board also noted that Mr. King’s treatment records

dated before 2000 were from VA examiners and included

no records from Dr. Dashiff. The Board concluded that

Dr. Dashiff's opinion was not based upon a review of the

claims file or upon a course of treatment by which he

could have become familiar with Mr. King’s claim.

The Board further determined the treatise article

submitted by Mr. King was of extremely low probative

value because, although the article generally addressed

questions on the relationship between limping and back

symptoms, the article did not address matters specific to

Mr. King’s case.

With respect to the VA medical opinion evidence, the

Board found VHA examiner’s opinion provided a clear

rationale for his conclusions, which were based upon a

review of the claims file with citation to specific medical

records. The VHA examiner’s opinion identified three

significant findings in support of its conclusion: the ab-

sence of any record of treatment for the claimed disabili-

ties between 1974 and 1995, the symmetrical changes

revealed in the hips, and the locations of the disc changes

in the spine. The Board concluded this opinion was of

high probative value because it had no deficiencies and

was comparatively more complete than Dr. Dashiff’s

opinion.

The Board then considered the lay testimony offered

by Mr. King and his wife. The Board found Mr. King

generally asserted that he developed back and hip dis-

abilities from falls and movement adjustments that were

a result of his service-connected knee disabilities. The

board further found Mrs. King's statement provided

similar contentions. The Board concluded the Kings’ lay

statements were not competent on the question of medical

KING v. SHINSEKI 8

causation because they lacked the medical training and

expertise required to render an opinion on medical causa-

tion.

The Board ultimately concluded that, on balance, the

evidence of record did not establish an etiological link

between Mr. King’s low back and hip disorders and his

period of service. The Board further concluded that the

evidence did not establish the claimed back and hip

disorders were shown to be secondary to Mr. King’s ser-

vice-connected disabilities. The Board, accordingly,

denied Mr. King’s claim.

Mr. King appealed to the Veterans Court. Regarding

the Kings’ lay testimony, the Veterans Court believed the

Board’s treatment was within its role as the fact finder.

While the Veterans Court acknowledged that lay evidence

may be used to establish medical causation, the court

observed the Board is not required “to accept all lay

statements as definitive proof of a service-connection

claim . . . .” The Veterans Court concluded that the Board

properly “considered [Mr. King’s] lay evidence but found

that it was outweighed by the competent medical evidence

of record . . . .” Mr. King appeals that holding.

II

The governing statute, regulation, and our precedent

make clear that competent lay evidence may be used to

establish a medical condition, including causation. The

governing statute provides as follows:

The Secretary shall consider all information and

lay and medical evidence of record in a case before

the Secretary with respect to benefits under laws

administered by the Secretary. When there is an

approximate balance of positive and negative evi-

dence regarding any issue material to the deter-

9 KING v. SHINSEKI

mination of a matter, the Secretary shall give the

benefit of the doubt to the claimant.

38 U.S.C. § 5107(b) (emphases added). The applicable

regulation provides that “[t]he factual basis [for establish-

ing a chronic disease] may be established by medical

evidence, competent lay evidence or both. . . . Lay evidence

should describe the material and relevant facts as to the

veteran’s disability observed within such period, not

merely conclusions based upon opinion.” 38 C.F.R.

§ 3.307(b) (emphases added). Consistent with the statute

and regulation, this court has stated that “lay evidence is

one type of evidence that must be considered” and that

“competent lay evidence can be sufficient in and of itself.”

Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir.

2006). In the same regard, this court has noted that the

Board’s failure to consider competent lay evidence is “a

legally untenable interpretation of the . . . [governing]

statutory and regulatory provisions . . . .” Id. at 1336.

Jandreau v. Nicholson followed Buchanan by revers-

ing the Veterans Court for applying the overbroad rule

that “competent medical evidence is required . . . [when]

the determinative issue involves either medical etiology or

a medical diagnosis.” 492 F.3d 1372, 1376 (Fed. Cir.

2007) (quotation marks and citation omitted). This court

noted that the Veterans Court’s holding was “inconsistent

with our decision in Buchanan . . ., which was decided

shortly before the decision of the Veterans’ Court in this

case.” Id. In Davidson v. Shinseki, this court again

stresses its consistent holdings that lay evidence may be

sufficient to establish a diagnosis of a medical condition

and its explicit rejection of the Veterans Court’s contrary

view in Buchanan and Jandreau. 581 F.3d 1313, 1316

(Fed. Cir. 2009). Nevertheless, “[i]gnoring [Buchanan and

Jandreau], the Veterans Court in this case stated cate-

gorically that a valid medical opinion was required to

KING v. SHINSEKI 10

establish nexus, and that [the claimant] was not compe-

tent to provide testimony as to nexus because she was a

layperson.” Id. This court, accordingly, reversed the

Veterans Court in Davidson.

In this case, the Board’s opinion stated:

The only other evidence of record supporting the

Veteran’s claim is his own opinion, as indicated in

his October 2004 Travel Board hearing testimony,

and that of his spouse, contained in a statement

received in December 1998, with similar conten-

tions. Neither individual, however, has been

shown to possess the requisite medical training,

expertise, or credentials needed to render a diagno-

sis or a competent opinion as to medical causation.

Accordingly, this lay evidence does not constitute

competent medical evidence and lacks probative

value.

A40 (emphasis added). It is presumed the Board’s deci-

sion was based on the entire record. See Gonzales v. West,

218 F.3d 1378, 1380–81 (Fed. Cir. 2000). The Board

seemed to place emphasis on the statutory requirement

that lay evidence demonstrate some “competence.”

The Veterans Court agreed with the Board that “the

probative value of [the November 2008 VHA] opinion is

very high” and King’s evidence “lacks probative value.”

A5–6, 40. Specifically addressing Mrs. King’s lay testi-

mony, the Veterans Court noted that nothing in the

record demonstrated that Mrs. King received any special

training or acquired any medical expertise in evaluating

and determining causal connections for conditions such as

Mr. King’s bilateral hip and back conditions. Accordingly,

the Veterans Court did not find error in the Board’s

statement that neither Mr. King nor his wife had “the

requisite medical training, expertise, or credentials

11 KING v. SHINSEKI

needed to render a diagnosis” thus their testimony “could

not establish medical causation” nor was it “a competent

opinion as to medical causation.” A40. Citing this court’s

precedent in Davidson v. Shinseki, 581 F.3d 1313 (Fed.

Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372

(Fed. Cir. 2007), the Veterans Court reasoned “[t]he

Board is not required to accept all lay statements as

definitive proof of a service-connection claim, however,

and nothing in Davidson precludes the Board from favor-

ing competent medical evidence over the lay statements

offered by a veteran.” A6. Thus, the Veterans Court

determined the Board did not improperly discount lay

evidence; instead, it simply found the expert’s testimony

more probative.

III

This court notes that this case is different from previ-

ous decisions reversed by this court. In this case, neither

the Board nor the Veterans Court deemed lay evidence

categorically incompetent. See Davidson, 581 F.3d at

1316; Buchanan, 451 F.3d at 1337. Moreover, neither

forum improperly required a medical opinion as the sole

way to prove causation. Id. Although citing case law

that has been overturned by this court’s precedent, the

Board did not make the unqualified determinations

present in the above overturned cases. Moreover, the

Veteran’s Court reassessed the evidence and found as well

that the Board did not err in its procedure or result.

The Veterans Court correctly evaluated the Board's

credibility assessment, weighing of evidence, and treat-

ment of Mrs. King’s testimony and did not find clear

error. The Veterans Court did not ignore the precedent of

Jandreau and did not categorically dismiss Mr. King’s lay

evidence. Rather, the Veterans Court addressed the

Board’s reliance on the VHA examiner’s opinion over Mr.

KING v. SHINSEKI 12

King’s other medical evidence. The Veterans Court

determined the Board did not err by favoring the opinion

of one competent medical expert over that of another and

found the Board’s reliance was justified. In reaching its

conclusion, the Veterans Court gave due consideration to

Mr. King and Mrs. King’s testimony, and did not deem

them incompetent merely because they were laypersons.

Accordingly, the Veterans Court did not err in its deter-

mination.

IV

Our jurisdiction to review Veterans Court decisions is

defined by 38 U.S.C. § 7292. This court has exclusive

jurisdiction to interpret statutory provisions and reviews

the Veterans Court’s statutory interpretations without

deference. 38 U.S.C. § 7292(c); Cook v. Principi, 353 F.3d

937, 938 (Fed. Cir. 2003). Absent a constitutional issue,

this court is precluded from reviewing challenges to

factual determinations or challenges to an application of

law to fact. 38 U.S.C. § 7292(d)(2) (“Except to the extent

that an appeal under this chapter presents a constitu-

tional issue, the Court of Appeals 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.”); Cook, 353 F.3d at 938–39. Although this Court

has jurisdiction to review a “rule of law,” including a rule

established by a judicial precedent of the Veterans Court,

it may not review the application of law to the facts of a

particular case. See Willsey v. Peake, 535 F.3d 1368,

1371–72 (Fed. Cir. 2008); see also Bastien v. Shinseki, 599

F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and

weighing of evidence and the drawing of appropriate

inferences from it are factual determinations committed

to the discretion of the fact-finder. We lack jurisdiction to

review these determinations.”).

13 KING v. SHINSEKI

The Veterans Court addressed Mr. King’s contentions

that his lay evidence was mistreated. In its evaluation, as

described above, the Veterans Court did not misinterpret

the applicable statutes or case law. On appeal, Mr. King’s

arguments fail on their merit and likewise fail to provide

a jurisdictional basis. This court is precluded from re-

viewing Mr. King’s contentions because they involve a

review of the application of law to fact. Because Mr. King

only challenges the evaluation and weighing of evidence,

this court lacks jurisdiction over this appeal.

DISMISSED

COSTS

Each party shall bear its own costs.

United States Court of Appeals

for the Federal Circuit

__________________________

NATHAN KING,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

__________________________

2011-7159

__________________________

Appeal from the United States Court of Appeals for

Veterans Claims in Case No. 09-4533, Judge Ronald M.

Holdaway.

__________________________

O’MALLEY, Circuit Judge, dissenting.

I dissent from the Court’s judgment because I find the

rationale used to justify it both unsupported by the record

and inconsistent with this Court’s binding case law.

While the majority strains to characterize the findings of

the Veterans Court and those of the Board before it as

consistent with 38 U.S.C. § 5107(b) and our case law

interpreting that mandate, the majority’s efforts fail.

Though it tries mightily, the majority cannot rewrite the

decisions below.

I

The Board was wrong to conclude that the Kings’ lay

testimony was neither competent nor probative of the

KING v. SHINSEKI 2

question of medical causation. The Veterans Court was

wrong to affirm the Board’s treatment of that evidence.

As the majority concedes, “[t]he governing statute,

regulation, and our precedent make clear that competent

lay evidence may be used to establish a medical condition,

including causation.” Majority at 8. We consistently have

made clear that “lay evidence is one type of evidence that

must be considered” and that “competent lay evidence can

be sufficient in and of itself,” to prove medical causation.

Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir.

2006) (emphasis added). We also have held that the

Board’s failure to consider competent lay evidence is “a

legally untenable interpretation of the . . . [governing]

statutory and regulatory provisions . . . .” Id. at 1336.

Notwithstanding the clear directive set forth in the

statute, regulation, and our holding in Buchanan, we

repeatedly have had to reverse the Veterans Court for

endorsing the Board’s failure to even consider competent

lay evidence when considering medical causation. In

Jandreau v. Nicholson, we reversed the Veterans Court

because it held that “competent medical evidence is

required . . . [when] the determinative issue involves

either medical etiology or a medical diagnosis.” 492 F.3d

1372, 1374 (Fed. Cir. 2007) (quotation marks and citation

omitted). We pointed out that this holding was untenable

under and “inconsistent with our decision in Buchanan . .

.” Id. at 1376. In Davidson v. Shinseki, we once more

emphasized that lay evidence may be sufficient to estab-

lish a diagnosis of a medical condition and reemphasized

our explicit rejection of the Veterans Court’s contrary

view in Buchanan and Jandreau. 581 F.3d 1313, 1316

(Fed. Cir. 2009). As the majority concedes, we were again

forced to reverse the Veterans Court in Davidson.

3 KING v. SHINSEKI

Here, the Veterans Court and the Board persist in

their disregard of the governing law. In its opinion, the

Board states:

The only other evidence of record supporting the

Veteran’s claim is his own opinion, as indicated in

his October 2004 Travel Board hearing testimony,

and that of his spouse, contained in a statement

received in December 1998, with similar conten-

tions. Neither individual, however, has been

shown to possess the requisite medical training,

expertise, or credentials needed to render a diagno-

sis or a competent opinion as to medical causation.

Accordingly, this lay evidence does not constitute

competent medical evidence and lacks probative

value.

In re King, No. 98-08 643A (Bd. Vet. App. Feb. 27, 2009)

(emphasis added). It is difficult to understand how the

Veterans Court endorsed that treatment of the Kings’ lay

evidence in the face of Buchanan, Jandreau, and David-

son. 1 Remarkably, the Board failed to cite any of these

1 In fact, the language used by the Board here is

strikingly similar to that which it used in Davidson.

There, the Board said:

In this case, there is no indication that the appel-

lant is other than a layperson without the appro-

priate medical training and expertise, so she is

not competent to provide a probative (persuasive)

opinion on a medical matter such as the etiology

of a disability.

In re Davidson, No. 02-16 322 (Bd. Vet. App. June 28,

2007). I struggle to understand how the outcome here is

different when the Board gave lay testimony the same

treatment it did in Davidson (i.e., because the witnesses

lacks medical credentials, their testimony is not proba-

tive).

KING v. SHINSEKI 4

cases; rather, it instead, relied on two Veterans Court

cases with contrary holdings that preceded Buchanan and

Jandreau. See Espiritu v. Derwinski, 2 Vet. App. 492,

494-95 (1992); Routen v. Brown, 10 Vet. App. 183, 186

(1997), aff’d on other grounds, 142 F.3d 1434 (Fed. Cir.

1998).

The Board was entitled to weigh the persuasiveness of

the Kings’ lay testimony against the other evidence in the

record. It was not permitted, however, to ignore that

evidence merely because it was lay evidence. And, it was

wrong to characterize that evidence as neither “compe-

tent” nor “probative.”

II

Despite this clear disregard of governing law, the ma-

jority attempts to salvage the Veterans Court’s ruling,

and that of the Board before it, by characterizing them as

saying something different than they do. First, the major-

ity says the Veterans Court did not “ignore the precedent

of Jandreau.” Majority at 11. It is hard to see how that

can be so, however, when that Court not only failed to cite

Jandreau and its progeny, but cited to contrary case law

of its own which Jandreau overruled.

Next, the majority says that neither the Board nor the

Veterans Court “deemed lay evidence categorically in-

competent.” Majority at 11. Again, it is hard to accept

this proposition when the Board opinion expressly states

that Mr. King’s lay evidence was rejected solely because it

was lay evidence. The Board made clear its view that “lay

evidence does not constitute competent medical evidence”

and, “lacks probative value” when assessing medical

causation. This rejection of Mr. King’s lay evidence —

once more based on outdated and long-since rejected legal

authority — could hardly be more categorical.

5 KING v. SHINSEKI

The Veterans Court erred as a matter of law by en-

dorsing the Board’s refusal to consider the Kings’ lay

testimony. Because the Veterans Court has, once more,

chosen to ignore our binding, repeated case law to the

contrary, we should reverse its decision and remand this

matter for reconsideration and application of correct

governing legal principles.