Patton v. West

HOLDAWAY, Judge,

dissenting:

I respectfully dissent with the holding of the majority. First of all, I dissent because by sua sponte raising issues not appealed, the majority’s opinion is directly in conflict not only with precedent established by this Court and the Federal Circuit, but also with longstanding rules of procedures in appellate courts.

In Carbino v. Gober, 10 Vet.App. 507 (1997), this Court declined to address a duty to assist argument relating to Manual M21-1 which was first raised by the appellant in his reply brief. Id. at 511 . The Court found that the appellant violated “rule 28(a)(3) of the Court’s Rules of Practice and Procedure which requires a statement of issues in the appellant’s brief’ rather than in his reply brief. Id. On appeal, the U.S. Court of Appeals for the Federal Circuit affirmed this decision. Carbino v. West, 168 F.3d 32 (Fed. Cir.1999). In affirming this decision, the Federal Circuit embellished upon this Court’s narrow holding by stating:

The Court of Veterans Appeals is authorized by statute to prescribe rules for the conduct of its proceedings. The court’s Rule 28(a)(3) is similar to the corresponding rule of the Federal Rules of Appellate Procedure. In applying that rule, courts have consistently concluded that the failure of an appellant to include an issue or argument in the opening brief will be deemed waiver of the issue or argument. We agree with the Court of Veterans Appeals *285 that the question ... was not properly and timely raised under that court’s rules.

Id. at 34 (citations omitted). In that case, the appellant argued that 38 U.S.C. § 7261 (a)(1) obliged the Court to “ ‘decide all relevant questions of law’ necessary to its decision, and that the untimely raised issue was such a question of law.” Id. (quoting 38 U.S.C. § 7261 (a)(1)). However, the Federal Circuit rejected this argument by stating: “Section 7261(a) provides only that the Court of Veterans Appeals ‘shall’ decide all relevant questions of law ‘to the extent necessary to its decision and when presented.’ ” Id. at 34-35 (quoting 38 U.S.C. § 7261 (a)(1) (1994)) (emphasis added by Federal Circuit).

The opinion of the Federal Circuit is consistent with long established rules of appellate practice. The role of appellate courts is to review issues presented to them. “The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). It is “sound judicial practice” to avoid issues not raised by the parties. United States v. Dickerson, 166 F.3d 667, 672 (4th Cir.1999) (Michael, C.J., dissenting) (citing Davis v. United States, 512 U.S. 452, 464 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994)) (Scalia, J., concurring). Appellate courts perform their role as arbiters best “when the parties raise the issues, and both sides brief and argue them fully.” Id. In other words, the role of an appellate court does not encompass presenting arguments on behalf of a party but rather deciding issues presented to it.

In this case, the appellant, through his attorney, has not raised the issues discussed by the majority: inadequate reasons or bases or a violation of the duty to assist in general, let alone specifically mentioning the particular Manual M21-1 provisions. By failing to raise such arguments in his brief, the appellant has effectively waived his right to appellate review on these issues. The Secretary, of course, has not had an opportunity to respond to the majority’s “arguments.” I do not believe, therefore, that the Court, in a case where the appellant is represented by qualified counsel, should sua sponte raise these issues when they are not presented for review. By raising issues not presented, the majority’s holding is' in conflict with 38 U.S.C. § 7261 (a) and the Federal Circuit’s interpretation of that statute in Carbino.

Not only has the appellant failed to raise the issue of the duty to assist before the Court, he never raised that issue before the Board. Compare Carbino, supra (noting the importance of the fact that the appellant had not raised the duty to assist argument with the Board) with Ledford v. West, 136 F.3d 776 (Fed.Cir.1998) (Court’s jurisdiction premised on issues raised to the Board). In fact, the appellant, through his accredited service organization, conceded before the Board that no other evidence is available by stating “The events described by Mr. Patton are in the large majority of case [sic] impossible to verify through official channels.” Rather than attempt to retrieve information which does not exist, the appellant focused his argument on the credibility of his testimony by arguing “We believe that Mr. Pat-tons [sic] testimony, under oath, is credible. That testimony, along with Dr. Billingsly’s thorough report should allow a grant of the benefit sought.”

Nonetheless, the majority contends that the Board failed to give adequate reasons and bases for its decision. On the contrary, I would find that the Board more than met this requirement. In its decision, the Board correctly held that the appellant suffered from a noncombat-related stressor and, thus, he must present credible evidence supporting his allegations. The Board then noted that the appellant conceded that the only contemporary evidence to corroborate his alleged stressor were his service medical records which reference some psychological problems. The Board then concluded that this evidence was insufficient to corroborate his claim of an in-service stressor. In sum, the Board found that no evidence in the claims file corroborates the appellant’s allegations nor has the appellant pointed to any evidence available which might provide such support.

The most likely reason the appellant did not raise duty to assist before the Board or *286 this Court is because he realized that there is no other information available to retrieve. In this case, the appellant, VA, and the Board exhaustively researched virtually every avenue to substantiate this claim. The fact of the matter is that there is apparently no evidence available. The appellant, therefore, has failed to carry his burden of establishing a well-grounded claim. The only piece of evidence that the appellant claims to exist which is not in the record on appeal is the testimony of the unnamed sergeant (or corporal — the appellant was not certain) from an unknown unit who allegedly instructed him not to tell anyone about the assault. Unquestionably, the Secretary has not assumed the duty to identify every noncommis-sioned officer stationed at Fort Bragg 40 years ago, produce their current addresses (assuming they could be found and the Privacy Act permitted their release), and query them to provide corroborating evidence to this claimant. The VARO given this task would have to devote virtually full time to this case alone.

The majority further contends that the appellant’s history should be “clinically interpreted” to determine whether it constitutes corroborating evidence. However, this has already been performed by Dr. Billingsly in his January 1994 compensation and pension examination. Dr. Billingsly, after reviewing the appellant’s entire history, concluded that it was entirely consistent with a person who had suffered such an in-service stressor. Yet this Court has held that such evidence cannot constitute corroborating testimony because the treating physician has no personal knowledge of the events in question. See Moreau v. Brown, 9 Vet.App. 389 (1996); cf. LeShore v. Brown, 8 Vet.App. 406 (1995). Therefore, not only has this evidence already been produced, such evidence would never be of assistance to the appellant’s claim under the Court’s case law.

The crux of this case is even after years of attempting to produce evidence, the appellant has never submitted a well-grounded claim. Contrary to the majority’s findings, there is no evidence that the in-service stres-sor occurred. First, the majority opinion attempts to bootstrap the appellant’s own statements to provide corroborating evidence. The majority’s conclusory statement in finding that the appellant has satisfied the requirement of a well-grounded claim, “He has provided ... lay evidence of a sexual assault as a noncombat in-service stressor,” cites to the appellant’s own oral testimony before the Board. Obviously, the appellant’s own testimony cannot corroborate his own allegations.

Later in the opinion, the majority finds that the Board failed to discuss other evidence in the record which might corroborate the appellant’s allegations. This analysis is flawed for several reasons. First, the majority never finds that such evidence does corroborate the appellant’s allegations, but avers that the Board erred by failing to discuss them. In fact, the majority states “If the stressor is verified, the Board must then proceed to adjudicate fully the matter....” However, the majority had already found that the appellant had submitted a well-grounded claim, thus, his stressor must already be corroborated, yet the majority fails to state the grounds for such an assertion, other than the appellant’s own testimony. Second, none of the evidence offered by the majority supports the appellant’s allegations. While this evidence certainly does not contradict the appellant’s testimony, only by drawing broad and groundless inferences can the majority use this evidence to corroborate the appellant’s testimony. For example, the statement by the appellant’s mother that “something had happened to him in the service” could mean virtually anything including his self-described “shame” for failure to complete his military service. His mother has no firsthand knowledge of the incident nor does she state that the appellant had confided in her about the assault. The Board’s basic conclusion, that the appellant has failed to offer any evidence to corroborate his story is correct. None of the evidence cited to by the majority offers and proof to substantiates the appellant’s claims. The Board, therefore, correctly found his claim not well grounded. For these reasons, I would affirm the decision of the Board.