Walker v. Shinseki

United States Court of Appeals

for the Federal Circuit

______________________

JAMES E. WALKER,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellee.

______________________

2011-7184

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 10-2634, Judge Bruce E. Kasold.

______________________

Decided: February 21, 2013

______________________

DAVID S. FORMAN, Finnegan, Henderson, Farabow,

Garrett & Dunner, LLP, of Washington, DC, argued for

claimant-appellant. With him on the brief was ANITA

BHUSHAN, of Atlanta, Georgia. Of counsel on the brief

were LOUIS J. GEORGE and BARTON F. STICHMAN, National

Veterans Legal Services Program, of Washington, DC. Of

counsel was JESSICA H. ROARK, Finnegan, Henderson,

Farabow, Garrett & Dunner, LLP, of Reston, Virginia.

2 WALKER v. SHINSEKI

ALEX P. HONTOS, Trial Attorney, Commercial Litiga-

tion Branch, Civil Division, United States Department of

Justice, of Washington, DC, argued for respondent-

appellee. With him 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 BRIAN D. GRIFFIN, Attor-

ney, United States Department of Veterans Affairs, of

Washington, DC.

______________________

Before DYK, CLEVENGER, and WALLACH, Circuit Judges.

CLEVENGER, Circuit Judge.

This case involves a claim for disability compensation

filed by Julius E. Walker (“Mr. Walker”) on April 7, 2007,

for bilateral hearing loss. The Board of Veterans’ Appeals

(“Board”) denied the claim on May 5, 2010. Pending

appeal to the United States Court of Appeals for Veterans

Claims (“Veterans Court”), the claimant died, and his son,

Brig. Gen. James E. Walker (“Walker”), was substituted

as a potential accrued benefits beneficiary. The Veterans

Court affirmed the Board’s denial of the claim for bilat-

eral hearing loss, and Walker timely appealed to this

court. We have jurisdiction under 38 U.S.C. § 7292 and

for the reasons set forth below, we affirm.

I

Mr. Walker served in the United States Army Air

Force from March of 1943 to November of 1945. His

military Occupational Specialty was a four-engine air-

plane pilot, and during service he was a flight instructor.

The Muskogee, Oklahoma Regional Office (“RO”) denied

the 2007 claim, and Mr. Walker appealed to the Board.

The appeal included sworn statements from his son and

wife that his hearing loss began in service and continued

WALKER v. SHINSEKI 3

throughout his life. In support of his appeal, Mr. Walker

was eventually examined by a Department of Veterans

Affairs audiologist on September 17, 2009. The audiolo-

gist was instructed to conduct an examination, and asked

“[i]f hearing loss is diagnosed is it at least as likely as not

due to his military service as a pilot. Please provide

medical rational[e] for opinion provided.”

Because Mr. Walker’s service medical records were

not available due to a fire in the facility housing the

records, the examiner had only information obtained from

Mr. Walker and his grandson, who related Mr. Walker’s

difficulty in hearing and his history of bilateral hearing

loss. The examiner noted that noise exposure in service is

conceded, and diagnosed Mr. Walker as suffering from

bilateral hearing loss that would qualify Mr. Walker for

compensation if he could establish service connection for

the diagnosed condition. The examiner however conclud-

ed that “the veteran’s hearing loss is less likely as not

caused primarily by military service as a pilot.” The

examiner reasoned that Mr. Walker served 60-65 years

ago, and that “[p]resbycusis (age-related hearing loss)

secondary to the veteran’s advanced age cannot be ex-

cluded as the primary etiology for the veteran’s hearing

loss.” The examiner also noted that Mr. Walker was

exposed to recreational noise by hunting game 7-8 times a

year throughout his life without use of any hearing pro-

tection. Based on this examination report, the RO denied

Mr. Walker’s claim.

Mr. Walker appealed to the Board. The Board had

the benefit of statements from Mr. Walker’s wife and son

to the effect that his hearing was normal upon entry into

service, he suffered significant hearing loss in his time as

a flight instructor, and his hearing slowly deteriorated in

the years following his service. Before addressing the

evidence in the case, the Board’s opinion set out the legal

criteria to be applied. In order to obtain disability com-

pensation under 38 U.S.C. §§ 1110, 1131 and

4 WALKER v. SHINSEKI

38 C.F.R. § 3.303(a), Walker had to satisfy a three-

element test: (1) the existence of a present disability; (2)

in-service incurrence or aggravation of a disease or injury;

and (3) a causal relationship between the present disabil-

ity and the disease or injury incurred or aggravated

during service – the so-called ‘nexus’ requirement. This

three-element test has been approved by this Court, see

Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009)

(quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.

Cir. 2004)), and is applied by the Veterans Court, see

Arms v. West, 12 Vet. App. 188 (1999). The Board also

noted that “if the condition noted during service is not

shown to be chronic, then generally a showing of continui-

ty of symptomatology after service is required for service

connection. 38 C.F.R. § 3.303(b) (2009).”

Applying the three-element test to the facts before it,

the Board concluded that the trained audiologist’s opinion

was entitled to more weight than the information Mr.

Walker and his grandson, and his wife and son had sup-

plied. Age and recreational noise were seen as the more

likely cause of Mr. Walker’s diagnosed bilateral hearing

loss. The Board thus concluded that Mr. Walker failed

under the three-element test to establish service connec-

tion for his bilateral hearing loss. The Board’s opinion did

not indicate whether it also found Mr. Walker’s claim

insufficient under 38 C.F.R. § 3.303(b). Mr. Walker

timely appealed to the Veterans Court, and as noted

above, upon Mr. Walker’s death, his son stepped into his

shoes for purposes of pursuit of his claim for compensa-

tion for bilateral hearing loss.

II

On appeal, Walker argued that the audiologist’s ex-

amination was inadequate, for failure to consider and

assess the “continuous long-standing symptomatology”

shown by the lay statements of the wife and son, which

were not before the examiner. Walker also argued that

WALKER v. SHINSEKI 5

the Board had not properly treated the lay evidence of

continuity of symptomatology, and sought a remand to

the Board for consideration of that evidence. The Veter-

ans Court affirmed the Board’s decision, also viewing the

case through the prism of the familiar three-part test for

service connection. The Veterans Court concluded that

the Board had adequately weighed the lay statements by

family members against the factors cited by the medical

examiner, and agreed with the medical examiner and the

Board that Mr. Walker’s diagnosed hearing loss was more

likely than not due to aging and recreational noise expo-

sure, not to noise exposure during service. The Veterans

Court’s decision did not refer to the possibility that Walk-

er could benefit from the provisions of 38 C.F.R. § 3.303(b)

by way of continuity of symptomatology. Walker’s request

for a remand was denied on the ground that remand is

unnecessary where it would result in additional burdens

on the government with no benefit flowing to the veteran.

Walker timely appealed the final decision of the Veterans

Court. The Secretary of Veterans Affairs (“Secretary”)

opposes.

We have jurisdiction under 38 U.S.C. § 7292, which

authorizes this court to interpret regulations issued by

the Secretary. As will be explained below, this appeal

requires us to interpret 38 C.F.R. § 3.303(b).

III

“Service connection” is a term of art that is used in

two ways, depending on the context in which the term is

expressed. The term applies to the ultimate entitlement

to disability compensation, after a veteran has satisfied

the three-element test or the test for entitlement to disa-

bility compensation for chronic diseases as set forth in

38 C.F.R. § 3.303(b). The term is also sometimes used to

refer to the second element of the three-element test,

namely that a disease or injury was incurred or aggravat-

ed while in service. The Secretary has promulgated

6 WALKER v. SHINSEKI

regulations on “Principles relating to service connection”

in 38 C.F.R. § 3.303, and in § 3.303(a), stating general

principles of service connection, the term is used in both

senses. “Service connection connotes many factors but

basically it means that the facts, shown by evidence,

establish that a particular injury or disease resulting in

disability was incurred coincident with service in the

Armed Forces, or if preexisting such service, was aggra-

vated therein” (emphasis added). Subsection (a) also

refers to “each disabling condition…for which [a veteran]

seeks a service connection” and states that

“[d]eterminations as to service connection will be based on

review of the entire evidence of record.” Satisfaction of

the three-element test thus achieves service connection, in

both senses, under § 3.303(a). As noted above, the RO,

the Board, and the Veterans Court measured Walker’s

claim for compensation under the three-element test. We

need not dwell further on § 3.303(a), however, because

Walker on appeal has waived any claim to entitlement

under subsection (a).

Walker’s briefs on appeal, and his oral argument, re-

duce the appeal to a single question: whether Walker is

entitled to a remand for consideration of service connec-

tion for his diagnosed bi-lateral hearing loss under

38 C.F.R. § 3.303(b). The answer to this question requires

interpretation of the term “chronic disease” as it appears

in § 3.303(b). Under Walker’s interpretation of the term,

he is entitled to the remand he requests. Under the Secre-

tary’s interpretation, the Veterans Court correctly denied

the remand request. We thus turn to subsection (b) of

§ 3.303.

IV

Subsection (b) reads as follows:

(b) Chronicity and continuity. With chronic dis-

ease shown as such in service (or within the pre-

sumptive period under § 3.307), so as to permit a

WALKER v. SHINSEKI 7

finding of service connection, subsequent manifes-

tations of the same chronic disease at any later

date, however remote, are service connected, un-

less clearly attributable to intercurrent causes.

This does not mean that any manifestation of joint

pain, any abnormality of heart action or heart

sounds, any urinary findings of casts, or any

cough, in service will permit service connection of

arthritis, disease of the heart, nephritis, or pul-

monary disease, first shown as a clearcut clinical

entity, at some later date. For the showing of

chronic disease in service there is required a com-

bination of manifestations sufficient to identify

the disease entity, and sufficient observation to

establish chronicity at the time, as distinguished

from merely isolated findings or a diagnosis in-

cluding the word “Chronic.” When the disease

identity is established (leprosy, tuberculosis, mul-

tiple sclerosis, etc.), there is no requirement of ev-

identiary showing of continuity. Continuity of

symptomatology is required only where the condi-

tion noted during service (or in the presumptive

period) is not, in fact, shown to be chronic or

where the diagnosis of chronicity may be legiti-

mately questioned. When the fact of chronicity in

service is not adequately supported, then a show-

ing of continuity after discharge is required to

support the claim.

Unlike subsection (a), which is not limited to any spe-

cific condition, subsection (b) restricts itself to chronic

diseases. Parsing through the language of the regulation,

two situations are revealed. First, there is an explicit rule

for when a chronic disease is “shown in service (or within

the presumptive period under § 3.307).” 1

1Section 3.307 deals with situations in which the vet-

eran can show no evidence of a chronic disease during the

8 WALKER v. SHINSEKI

The regulation equates “shown in service” with a reli-

able diagnosis of the chronic disease while in service.

Mere use of the word “chronic” does not suffice. For a

showing in service, “there is required a combination of

manifestations sufficient to identify the disease entity,

and sufficient observation to establish chronicity at the

time.” The regulation is clear that any manifestation of a

chronic disease, such as joint pain, etc., will not permit

service connection for the chronic disease associated with

the manifestation, in that instance, arthritis. To be

“shown in service,” the disease identity must be estab-

lished and the diagnosis not be subject to legitimate

question.

When a veteran satisfies the requirements for a

chronic disease shown in service (or within the presump-

tive period under § 3.307), then all subsequent manifesta-

tions of the same chronic disease at any later date,

however remote, are service connected, unless clearly

attributable to intercurrent causes. Thus if a veteran can

prove a chronic disease “shown in service,” and there are

no intercurrent causes, the manifestation of the chronic

disease present at the time the veteran seeks benefits

establishes service connection for the chronic disease. By

treating all subsequent manifestations as service connect-

ed, the veteran is relieved of the requirement to show a

causal relationship between the condition in service and

the condition for which disability compensation is sought.

period of service, but can show a chronic disease that had

become manifest to a degree of 10 percent or more within

a limited time, depending on the particular identity of the

chronic disease, after separation from service. Upon such

showing, the chronic disease “will be considered to have

been incurred in or aggravated by service,” thus satisfying

the second element of the three-element test. Walker

does not seek the benefit of § 3.307 to establish that his

bilateral hearing loss was incurred in service.

WALKER v. SHINSEKI 9

In short, there is no “nexus” requirement for compensa-

tion for a chronic disease which was shown in service, so

long as there is an absence of intercurrent causes to

explain post-service manifestations of the chronic disease.

Subsection (b) provides a second route by which a vet-

eran can establish service connection for a chronic dis-

ease. If evidence of a chronic condition is noted during

service or during the presumptive period, but the chronic

condition is not “shown to be chronic, or where the diag-

nosis of chronicity may be legitimately questioned,” i.e.,

“when the fact of chronicity in service is not adequately

supported,” then a showing of continuity of symptomatol-

ogy after discharge is required to support a claim for

disability compensation for the chronic disease. Proven

continuity of symptomatology establishes the link, or

nexus, between the current disease and serves as the

evidentiary tool to confirm the existence of the chronic

disease while in service or a presumptive period during

which existence in service is presumed. 2

V

Walker contends that the Veterans Court failed to ap-

ply the correct law to his case when it denied him a re-

2 In Savage v. Gober, 10 Vet. App. 488, 495-96 (1997),

the Veterans Court concluded that § 3.303(b) “provid[ed] a

substitute way of showing in-service incurrence and

medical nexus” for purpose of showing the ultimate con-

clusion of service connection. In Summers v. Gober, 225

F.3d 1293, 1296 (Fed. Cir. 2000) we noted that “[t]his

court has never affirmed the [Veterans Court’s] under-

standing in Savage of the impact of 38 C.F.R. § 3.303(b)

on the medical evidence of nexus requirement.” Subse-

quently, in Groves v. Peake, 524 F.3d 1306, 1309-10 (Fed.

Cir. 2008), at least for a chronic disease shown in service,

we agreed that absent intercurrent causes § 3.303(b)

supplies the medical nexus requirement.

10 WALKER v. SHINSEKI

mand to assess the evidence of continuity of sympto-

matology of his bilateral hearing loss. Although there is

no evidence of record of a diagnosis of bilateral hearing

loss during service, Walker argues that bilateral hearing

loss was noted in service by his wife and son and he has

presented evidence of continuity of symptomatology

following discharge to link his currently diagnosed bilat-

eral hearing loss with the hearing loss condition noted in

service. Walker asserts that the term “chronic disease” in

§ 3.303(b) should be interpreted to apply to any disease

that ordinarily would be considered chronic in the medical

arts. Walker cites Dorland’s Ilustrated Med. Dictionary

359 (32d ed. 2012): a chronic disease is a disease “persist-

ing over a long period of time.” Further, Walker cites the

definition in the Secretary’s Manual for Developing

Claims for Service Connection for Chronic or Tropical

Diseases, M21-1MR, Part IV, Subpart II, Chapter 1,

Section H: “A chronic disease is a disease of prolonged

duration, producing incapacitating symptoms of varying

degree that may undergo remission, and that is seldom

entirely cured with all residuals of damage being com-

pletely eradicated.” Based on these definitions of chronic

disease, Walker maintains that his father’s bi-lateral

hearing loss qualifies for assessment as a chronic disease

under § 3.303(b).

The Secretary does not disagree with the ordinary def-

initions of “chronic disease” offered by Walker. The

Secretary first points to 38 U.S.C. § 1011(3), where Con-

gress specified that “[t]he term ‘chronic disease’ includes –

[41 specifically named chronic diseases] and such other

chronic diseases as the Secretary may add to this list.”

Further, the Secretary points to 38 C.F.R. § 3.309(a),

which sets forth a specific list of chronic diseases that

includes those identified in the statute. The Secretary

emphasizes that bilateral hearing loss is not on the statu-

tory list of chronic diseases, nor is it included in the list of

chronic diseases set firth in § 3.309(a). The Secretary

WALKER v. SHINSEKI 11

thus concludes that “every ‘chronic disease’ is persistent

or long-lasting, but not every persistent or long-lasting

disease is a ‘chronic disease’” for purposes of § 3.303(b).”

Instead, the Secretary interprets § 3.303(b) to have se-

lected out of the complete range of potential chronic

diseases, specific ones that qualify for assessment under

§ 3.303(b). The only chronic diseases that qualify for

assessment under § 3.303(b), according to the Secretary,

are those listed in § 3.309(a). Because bilateral hearing

loss is undeniably not listed in § 3.309(a), the Secretary

maintains that Walker cannot have access to § 3.303(b).

The Secretary’s interpretative analysis considers

§ 3.303(b) in the context of § 3.307(a) and § 3.309(a), in

the light of the interlinkage of those regulations.

Section 3.307(a) deals with presumptive service con-

nection. As noted above, a veteran is not denied service

connection (in either of the two senses) simply because

there is no evidence of record of any kind of a chronic

disease while in service. Where a veteran can show

manifestation of a chronic disease to a degree of 10 per-

cent or more within stated time periods, § 3.307(a) pre-

sumes that the veteran incurred the disease in service,

thus establishing service connection in the narrower

sense. To achieve service connection in the broader,

ultimate, sense, the veteran carries the presumption of

service incurrence of a chronic disease back to § 3.303(b).

If the chronic disease was “shown” (i.e. well diagnosed

beyond question) in the presumptive period, § 3.303(b)

eliminates the nexus requirement on the basis of the

current manifestation of the chronic disease, unless

intercurrent causes undermine the automatic connection

between the in service showing and the present condition.

The Secretary correctly notes that a veteran seeking

ultimate service connection under § 3.303(b) on account of

a presumptive service connection can only do so for the

chronic diseases that are named in § 3.309(a), because

12 WALKER v. SHINSEKI

§ 3.307(a) states “[n]o condition other than one listed in

§ 3.309(a) will be considered chronic.”

The same linkage exists between § 3.307(a) and

§ 3.309(a) in the situation where the veteran cannot

establish a chronic disease “shown” in the presumptive

period for purposes of § 3.303(b) but can point to a chronic

condition that was noted in the presumptive period but

the notation was insufficient to support a diagnosis be-

yond legitimate question. In that instance, the veteran

can benefit from continuity of symptomatology to estab-

lish service connection in the ultimate sense, but only if

his chronic disease is one listed in § 3.309(a).

The Secretary recognizes that there is no explicit

cross reference to § 3.309(a) stated in § 3.303(b). Walker

relies on the lack of such an express linkage to support his

view that § 3.303(b) applies to any disease that would be

considered “chronic” in medicine. But the absence of a

direct linkage, if dispositive, would leave § 3.303(b) stand-

ing as a regulation that treats veterans differently, de-

pending on the point in time that their chronic diseases

were “shown” or “noted.” Under Walker’s interpretation

of “chronic disease” a veteran whose chronic disease is

either shown or noted in service would benefit from

§ 3.303(b) so long as his disease met a medical definition

of “chronic,” but a veteran whose chronic disease was

shown or noted only in the presumptive period (in the

absence of in-service records) would benefit from

§ 3.303(b) only if his chronic disease is listed in § 3.309(a).

The Secretary argues that such difference in treatment

has no reason, and Walker has pointed to none. In order

to treat all veterans equally, the Secretary interprets

§ 3.303(b) as implicitly constrained by § 3.309(a) in all

chronic disease cases. We think the Secretary’s interpre-

tation is reasonable. The absence of an explicit cross

reference to § 3.309(a) in § 3.303(b) neither undermines

the Secretary’s case nor makes Walker’s case. Instead,

the absence of the cross reference, given the clear linkage

WALKER v. SHINSEKI 13

of § 3.307(a) and § 3.309(a) to § 3.303, creates ambiguity

as to whether § 3.309(a) constrains the application of

§ 3.303(b) in all, or only some, chronic disease cases.

The Secretary reads § 3.303(b) to provide an alterna-

tive path to satisfaction of the standard three-element

test for entitlement to disability compensation, but only

for a limited number of identified chronic diseases. For

other diseases that might be considered chronic, a veteran

must pursue his claim through § 3.303(a), where medical

nexus of a relationship between the condition in service

and the present condition is required.

Even though § 3.303(b) does not contain a specific

cross reference to § 3.309(a), we think a harmonious

reading of §§ 3.303(b), 3.307(a) and 3.309(a) supports an

implicit cross reference to § 3.309(a) in § 3.303(b). We are

thus persuaded that the Secretary’s interpretation of the

regulation is correct. 3

For the reasons explained above, we conclude that

properly interpreted, and consistent with the Secretary’s

interpretation, § 3.303(b) is constrained by § 3.309(a),

regardless of the point in time when a veteran’s chronic

disease is either shown or noted, in that the regulation is

only available to establish service connection for the

3 The Secretary advises us that he disagrees with

Savage v. Gober and other Veterans Court decisions in

cases that have extended § 3.303(b), in reliance on Savage

v. Gober, beyond the list of chronic diseases found in

§ 3.309(a). For example, the Veterans Court gave the

benefit of §3.303(b) to a claim for psoriasis in Kent v.

Nicholson, 20 Vet. App. 1 (2006), and to a claim for vari-

cose veins in Barr v. Nicholson, 21 Vet. App. 303 (2007),

even though neither condition is named as a chronic

disease in § 3.309(a).

14 WALKER v. SHINSEKI

specific chronic diseases listed in § 3.309(a). 4 We also

agree with the Secretary’s view that diseases that would

be considered “chronic” in a medical sense, but which are

not listed in § 3.309(a), may qualify for service connection

under the three-element test under § 3.303(a). The pri-

mary difference between a chronic disease that qualifies

for § 3.303(b) analysis, and one that must be tested under

§ 3.303(a), is that the latter must satisfy the “nexus”

requirement of the three-element test, whereas the former

benefits from presumptive service connection (absent

intercurrent causes) or service connection via continuity

of symptomatology.

In addition to arguing that the continuity of sympto-

matology avenue to service connection under §3.303(b)

should be available for chronic diseases not enumerated

in the statute or in the only regulation that lists named

chronic diseases, Walker makes a broader argument that

continuity of symptomatology is not even restricted to

chronic diseases, but instead is available to gain service

connection for any non-chronic disease or injury.

Walker grounds this broader argument on the follow-

ing language in § 3.303(b): “Continuity of symptomatology

is required only where the condition noted during service

(or in the presumptive period) is not, in fact, shown to be

chronic or where the diagnosis of chronicity may be legit-

4 The question of whether and to what extent

§ 3.303(b) is constrained by § 3.309(a) is new to this court.

This question has not arisen for adjudication in the lim-

ited number of our cases that have cited § 3.303(b). In one

case, in dictum, we suggested that § 3.303(b) is not so

constrained. See Groves v. Peake, 524 F.3d 1306, 1309 n.1

(Fed. Cir. 2008). That suggestion is incorrect, and the

decisions of the Veterans Court that have extended conti-

nuity of symptomatology under § 3.303(b) to chronic

diseases not enumerated in § 3.309(a) are hereby abrogat-

ed.

WALKER v. SHINSEKI 15

imately questioned.” Walker also points to language in

opinions of the Veterans Court, including Savage v.

Gober, supra, stating generally that continuity of symp-

tomatology is an alternative way to establish service

connection. Walker further points to dictum in our cases

suggesting that continuity of symptomatology is not

restricted to establishing service connection for chronic

diseases. See, Groves v. Peake, 524 F.3d 1306, 1309 n.1

(Fed. Cir. 2008); Szemraj v. Principi, 357 F.3d 1370, 1376

n.2 (Fed. Cir. 2004).

We first address Walker’s reliance of the language of

the regulation to support his broader claim. Sec-

tion 3.303(b) is addressed to “Chronicity and continuity.”

The only kind of disease mentioned in the regulation is

chronic disease. The regulation, as parsed above, refers to

chronic diseases that are either “shown in service,” mean-

ing clearly diagnosed beyond legitimate question, or not

so shown in service. When a “condition noted in service”

is not sufficient to warrant the conclusion that the chronic

disease is “shown to be chronic” in service, continuity of

symptomatology may suffice to establish that the veteran

incurred a chronic disease in service. The natural reading

of the “condition” noted in service is a condition indicative

of a chronic disease, but not sufficiently indicative to

demonstrate that the chronic disease is “shown to be

chronic.” Nothing in § 3.303(b) suggests that the regula-

tion would have any effect beyond affording an alternative

route for proving service connection for chronic diseases.

The clear purpose of the regulation is to relax the re-

quirements of § 3.303(a) for establishing service connec-

tion for certain chronic diseases. Walker’s argument that

§ 3.303(b) applies to every disease or condition would

undermine the evidentiary requirement for satisfaction of

the third, or nexus, step in the three-element test under

§ 3.303(a).

The regulatory history predating § 3.303(b) indicates

that continuity of symptomatology is an evidentiary tool

16 WALKER v. SHINSEKI

to aid in evaluation of a chronic disease in service. Sec-

tions 3.303 and 3.307 derive in substantial part from

former 38 C.F.R. § 3.80 (1956), which in turn derives from

another regulation, R. & P. R. 1080(A), that incorporated

continuity of symptomatology in 1947. R. & P. R. 1080(A)

provided:

When the etiological identity is perfect . . . there is

no requirement of evidentiary showing of continu-

ity. Continuity of symptomatology is required only

where the condition noted during service is not in

fact shown to be chronic or where the diagnosis of

chronicity may be legitimately questioned. When

the fact of chronicity during service is not, in the

opinion of the adjudicating agency, adequately

supported, then there may be reason to require

some showing of continuity after discharge to

support the claim.

See also 38 C.F.R. § 3.80 (1956) (containing similar lan-

guage). This regulatory history demonstrates that the

same language in § 3.303(b) to which Walker points has

been in the operative regulations for service connection

for chronic diseases since at least 1947. The correct un-

derstanding of the “condition noted during service” is that

the condition is one that is indicative of but not disposi-

tive of a chronic disease.

We thus reject Walker’s broader argument that conti-

nuity of symptomatology in § 3.303(b) has any role other

than to afford an alternative route to service connection

for specific chronic diseases. Suggestions or holdings to

the contrary in any decisions of the Veterans Court, and

dictum to the contrary in our precedent, are incorrect and

of no effect.

The Secretary is free to amend § 3.309(a) if he deter-

mines that chronic diseases beyond those currently listed

should benefit from the application of § 3.303(b).

See 38 U.S.C. § 1101(3). Indeed, during supplemental

WALKER v. SHINSEKI 17

briefing in this case, the court was informed that the

Secretary is currently considering a substantial revision

of his regulations concerning service connection for disa-

bility compensation.

VI

Because Walker seeks compensation for a condition

that is not listed as a chronic disease in § 3.309(a), his

claim cannot be processed under § 3.303(b). 5 For that

reason, it was not error for the Veterans Court to deny

Walker’s request for a remand to the Board to conduct a

§ 3.303(b) assessment of the facts of record. Walker’s

claim for relief under § 3.303(a) was judged against him

by the Board and the Veterans Court, and he limited his

appeal to his chances under § 3.303(b). For the reasons

set forth above, we affirm the final decision of the Veter-

ans Court.

AFFIRMED

COSTS

No costs.

5 Under Savage v. Gober, and its progeny, cases with

which the Secretary has expressed disagreement, the

continuity of symptomatology test requires not only

showing the continuity, but showing a medical nexus

between the current condition on which the claim is

staked and the continuity of symptomatology. Savage v.

Gober, 10 Vet. App. at 498. We do not opine on how

§ 3.303(b) operates in practice, and we emphasize that the

only issue regarding § 3.303(b) on which we rule today is

that the regulation benefits only chronic diseases listed in

§ 3.309(a).