Sullivan v. McDonough ( 2022 )


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  • Case: 21-1459   Document: 51     Page: 1   Filed: 08/11/2022
    NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    MARY LOUISE SULLIVAN, ELNORA A. MARVIN,
    MARQUETTA G. BROWN, ALL SUBSTITUTED FOR
    DANIEL J. WILLIAMS,
    Claimants-Appellants
    v.
    DENIS MCDONOUGH, SECRETARY OF
    VETERANS AFFAIRS,
    Respondent-Appellee
    ______________________
    2021-1459
    ______________________
    Appeal from the United States Court of Appeals for
    Veterans Claims in No. 19-4168, Judge Joseph L. Toth.
    ______________________
    Decided: August 11, 2022
    ______________________
    KENNETH M. CARPENTER, Law Offices of Carpenter
    Chartered, Topeka, KS, argued for claimants-appellants.
    EVAN WISSER, Commercial Litigation Branch, Civil Di-
    vision, United States Department of Justice, Washington,
    DC, argued for respondent-appellee. Also represented by
    BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
    MCCARTHY; CHRISTINA LYNN GREGG, BRIAN D. GRIFFIN,
    Case: 21-1459    Document: 51     Page: 2    Filed: 08/11/2022
    2                                   SULLIVAN   v. MCDONOUGH
    Office of General Counsel, United States Department of
    Veterans Affairs, Washington, DC.
    ______________________
    Before REYNA, CHEN, and STARK, Circuit Judges.
    CHEN, Circuit Judge.
    Ms. Mary Louise Sullivan et al., substituting for Mr.
    Daniel J. Williams, appeal the decision of the United States
    Court of Appeals for Veterans Claims (Veterans Court) af-
    firming a decision of the Board of Veterans’ Appeals
    (Board) denying service connection for Mr. Williams’s
    schizophrenia. Williams v. Willkie, No. 19-4168, 
    2020 WL 5792175
    , at *1 (Vet. App. Sept. 29, 2020). Appellants argue
    the Veterans Court legally erred by misconstruing the re-
    lationship between 
    38 U.S.C. § 1111
     and 
    38 U.S.C. § 1153
    .
    Specifically, Appellants argue the Veterans Court errone-
    ously “relied upon a legal standard that effectively placed
    the burden on the veteran to show that a preexisting con-
    dition had increased in severity while on active duty” and
    improperly conflated the “presumption of soundness” un-
    der § 1111 with the “presumption of aggravation” under
    § 1153. Appellants’ Br. 4, 11. Because the Veterans Court
    correctly interpreted the relevant statutes in accordance
    with the statutory language and our precedent, we affirm.
    We have jurisdiction under 
    38 U.S.C. § 7292
     and re-
    view the Veterans Court’s statutory interpretation de novo.
    Anania v. McDonough, 
    1 F.4th 1019
    , 1022 (Fed. Cir. 2021);
    Hudgens v. McDonald, 
    823 F.3d 630
    , 634 (Fed. Cir. 2016).
    Section 1111 sets forth the “presumption of soundness”
    whereby, in the course of assessing a veteran’s entitlement
    to disability compensation, “every veteran shall be taken to
    have been in sound condition when examined, accepted,
    and enrolled for service except . . . where clear and unmis-
    takable evidence demonstrates that the injury or disease
    existed before acceptance and enrollment and was not ag-
    gravated by such service.” In other words, “the government
    Case: 21-1459    Document: 51      Page: 3    Filed: 08/11/2022
    SULLIVAN   v. MCDONOUGH                                    3
    must show clear and unmistakable evidence of both a
    preexisting condition and a lack of in-service aggravation”
    to establish that a veteran entitled to the presumption does
    not have a service-connected disability. Wagner v. Principi,
    
    370 F.3d 1089
    , 1096 (Fed. Cir. 2004) (emphases added).
    Section 1153 guides the analysis of the second prong of
    § 1111 requiring that the condition “was not aggravated.”
    Specifically, § 1153 explains that in-service aggravation oc-
    curs when “there is an increase in disability during [] ser-
    vice.” If there is such an increase, the veteran is entitled
    to a “presumption of aggravation,” that is, a presumption
    that the veteran’s service aggravated the condition. The
    government can overcome this presumption by demon-
    strating, again by clear and unmistakable evidence, “that
    the increase in disability is due to the natural progress of
    the disease.” § 1153; Wagner, 
    370 F.3d at 1096
    . To ulti-
    mately overcome the presumption of soundness, therefore,
    the government must show: (1) a preexisting condition; and
    (2) lack of in-service aggravation, which the government
    can establish by showing that the increase in disability is
    due to natural progression and not service.
    The Veterans Court correctly interpreted both stat-
    utes, consistently and properly requiring the government
    to overcome both presumptions with clear and unmistaka-
    ble evidence. The Veterans Court began by properly apply-
    ing the presumption of soundness because “[Mr.
    Williams’s] entrance examination did not note the presence
    of schizophrenia or any other psychiatric abnormalities.”
    Williams, 
    2020 WL 5792175
    , at *3. The Veterans Court
    ultimately found that the government overcame the pre-
    sumption under a correct interpretation of the statutes
    that tracks our analysis above. First, the Veterans Court
    found that the government satisfied the first prong of
    § 1111 with clear and unmistakable evidence that Mr. Wil-
    liams’s schizophrenia preexisted service. Id. The Veterans
    Court next analyzed the second prong: whether Mr. Wil-
    liams’s condition was aggravated by service. Id. at *4. The
    Case: 21-1459     Document: 51     Page: 4    Filed: 08/11/2022
    4                                    SULLIVAN   v. MCDONOUGH
    Veterans Court found the government met its burden by
    presenting clear and unmistakable evidence that any wors-
    ening of Mr. Williams’s condition was attributable to the
    “ongoing ebb and flow of symptoms” consistent with “a clas-
    sic presentation of schizophrenia.” Id. (internal quotations
    marks omitted). This demonstrates that the Veterans
    Court, both in explanation and in practice, correctly inter-
    preted both § 1111 and § 1153, as well as the relationship
    between the two.
    We also disagree with Appellants’ argument that the
    Veterans Court improperly placed the burden on Mr. Wil-
    liams to demonstrate an increase in disability under
    § 1153. Appellants’ Br. 6–7; Oral Arg. at 3:48–4:14. This
    challenge is based on the Veterans Court’s citation to Davis
    v. Principi, 
    276 F.3d 1341
    , 1347 (Fed. Cir. 2002), where we
    found that a veteran had not established entitlement to a
    presumption of aggravation. However, the Veterans Court
    relied on Davis only for its useful description of the defini-
    tional portion of § 1153, namely, that “increase in disabil-
    ity” in that statute “refers to ‘an overall worsening of the
    disability rather than any observable increase in disability,
    irrespective of temporal duration.’” Williams, 
    2020 WL 5792175
    , at *4 (quoting Davis, 
    276 F.3d at 1344
    ). Appel-
    lants’ contention, at bottom, is that any citation to Davis
    necessarily means that the Veterans Court placed the bur-
    den on the veteran to show an increase in disability. That
    asserted reading of the Veterans Court opinion is merit-
    less. As explained above, because the Veterans Court
    found that Mr. Williams was entitled to the presumption of
    aggravation (unlike the veteran in Davis), the Veterans
    Court then correctly required the government to show lack
    of in-service aggravation. 
    Id.
    Because we agree with the Veterans Court’s statutory
    interpretation, we affirm.
    CONCLUSION
    We have considered Appellants’ remaining arguments
    Case: 21-1459    Document: 51   Page: 5   Filed: 08/11/2022
    SULLIVAN   v. MCDONOUGH                                5
    and do not find them persuasive. For the foregoing rea-
    sons, we affirm the decision of the Veterans Court.
    AFFIRMED
    

Document Info

Docket Number: 21-1459

Filed Date: 8/11/2022

Precedential Status: Non-Precedential

Modified Date: 9/12/2022