James L. Parrish v. Eric K. Shinseki , 24 Vet. App. 391 ( 2011 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 09-0757
JAMES L. PARRISH , APPELLANT ,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE .
On Appeal from the Board of Veterans' Appeals
(Argued January 27, 2011 Decided April 22, 2011)
Glenn R. Bergmann, with whom Daniel D. Wedemeyer was on the brief, both of Bethesda,
Maryland, for the appellant.
Lavinia A. Derr, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant
General Counsel; and Richard Mayerick, Deputy Assistant General Counsel, were on the brief, all
of Washington, D.C., for the appellee.
Before KASOLD, Chief Judge, and MOORMAN and DAVIS, Judges.
KASOLD, Chief Judge, filed the opinion of the Court. DAVIS, Judge, filed an opinion
concurring in the result.
KASOLD, Chief Judge: Veteran James L. Parrish appeals through counsel that part of a
February 9, 2009, decision of the Board of Veterans' Appeals (Board) that denied disability
compensation for chronic obstructive pulmonary disease (COPD) and pulmonary fibrosis,1 both
claimed to be a result of in-service radiation exposure, because the disabilities are not service
connected. Mr. Parrish's initial argument to the Court focused on the adequacy of the Board's
statement of reasons or bases for its decision with regard to its reliance on the procedure employed
and decisions obtained by the Secretary in accordance with 38 C.F.R. § 3.311(c), a regulation
1
"COPD" is any disorder characterized by persistent or recurring obstruction of bronchial air flow, such as
chronic bronchitis, asthma, or pulmonary emphysema. D O RLAN D 'S I LLUSTRATED M ED IC AL D IC TIO N ARY 538 (31st ed.
2007) [hereinafter D O RLAN D 'S ]. "Pulmonary fibrosis" is the formation of fibrous tissue in the lungs. Id. at 712 and 1575.
pertaining to the Secretary's radiation exposure claim adjudication process. On November 16, 2010,
the Court affirmed the Board's decision.
Mr. Parrish timely sought reconsideration, specifically contending that 38 C.F.R. § 3.100does not permit the Under Secretary for Benefits (USB) to delegate obligations that expressly are
placed upon him by § 3.311(c). Although this specific argument was not raised in his initial brief,
it is sufficiently related to his initial argument to grant reconsideration, and the November 16
decision was withdrawn. Because this specific issue has not previously been decided by the Court,
it was referred for decision by a panel of the Court. Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990).
For the reasons set forth below, the Court holds that (1) the express designation of
responsibility to the USB stated in § 3.311(c) does not limit the USB's authority under § 3.100 to
designate the Compensation and Pension (C&P) Service Director (C&P Cirector) to render the
opinion required by § 3.311(c), and (2) Mr. Parrish otherwise fails to demonstrate error in the
Board's decision. Therefore, the Board's decision will be affirmed.
I. FACTS
Mr. Parrish served on active duty from January 1957 to December 1959. In August 1999,
he submitted a disability compensation claim for, inter alia, COPD and pulmonary fibrosis from
exposure to in-service radiation. With his claim, Mr. Parrish submitted an August 1999 letter from
his private physician who opined that his conditions "certainly could have been caused by his
exposure to radiation." Record (R.) at 504. Responding to a request from the St. Petersburg,
Florida, regional office (RO), the Defense Threat Reduction Agency (DTRA) confirmed that Mr.
Parrish was present at Operation PLUMBBOB, a U.S. atmospheric nuclear test series conducted in
Nevada in 1957, but that he had not been exposed to measurable radiation. The RO denied the claim
in a November 2001 rating decision.
In July 2002, Mr. Parrish submitted a Notice of Disagreement and an article discussing
possible health problems of veterans who participated in nuclear weapons testing. The RO continued
its denial of the claim in a January 2004 Statement of the Case. With his appeal to the Board, Mr.
Parrish submitted another letter from his private physician dated February 23, 2004. The matter was
forwarded to the RO for more development and an additional dose estimate from DTRA was
2
obtained. According to a November 2007 letter from DTRA, DTRA began a new policy to provide
worst-case radiation dose estimates to give the maximum benefit of the doubt to veterans and to
ensure that reported doses are not less than actual doses. Although Mr. Parrish originally was found
to have nonmeasurable exposure to radiation, under the new policy, DTRA estimated that Mr.
Parrish could not have been exposed to more than 16 rem external gamma dose, 1 rem external
neutron dose, 1 rem internal committed dose to his lung (alpha), and 3 rem internal committed dose
to his lung (beta + gamma).
In December 2007, the RO requested from the C&P Service a decision regarding the issue
of service connection for COPD and pulmonary fibrosis secondary to ionizing radiation exposure.
The request included "information as required by the manual," to wit: (a) Pertinent service
information; (b) the circumstances, including the dates of exposure; (c) description of disease
claimed; (d) age at time of exposure, (e) dosage estimate; (f) time lapse between exposure and onset
of disease; (g) gender, pertinent family history and employment history; (h) history of exposure to
known carcinogens or radiation, including smoking; and (i) other relevant information. R. at 230-31.
The C&P Director subsequently forwarded this information to the Under Secretary for Health. The
subject line of the memorandum reads: "Radiation Review - 38 C.F.R. § 3.311." R. at 222.
In July 2008, the chief public health and environmental hazards officer (CPHEHO)
responded to the C&P Director's request.2 In sum, the CPHEHO noted that Mr. Parrish's dose
estimates of 16, 1, 1 and 3 rem were the worst-case assumptions, and that although the Interactive
Radioepidemiological Program is used to estimate the likelihood that radiation exposure is related
to malignant neoplastic disease,3 the program did not cover non-neoplastic disease such as COPD
and pulmonary fibrosis. The CPHEHO noted the following research findings: (1) There were no
peer-reviewed studies documenting a statistically significant association between pulmonary fibrosis
or COPD and a dose response to radiation exposure; (2) some research showed a significant dose-
2
The parties do not take issue with the apparent delegation of authority in this instance. Because the matter was
not addressed by the Board or argued by the parties, the Court will not further address it. See Carbino v. West, 168 F.3d
32, 35 (Fed. Cir. 1999) (noting that the Court properly declined to consider contentions that were not raised by the
appellant).
3
"Neoplastic" means pertaining to "neoplasm," which is any new and abnormal growth; specifically a new
growth of tissue that is uncontrolled and progressive. See D O RLAN D 'S at 1258.
3
response relationship for respiratory disease and other non-neoplastic diseases, but smoking also
affects noncancer mortality; (3) additional research confirmed these findings but noted that it was
not possible to rule out a model with a threshold as high as 50 rem for other non-neoplastic diseases;4
(4) lifetime noncancer risks for people exposed as adults to 100 rem were similar to those for solid
cancer, and for people exposed as children, the risks were about half as great. Noting that Mr.
Parrish was a former smoker, the CPHEHO concluded in light of the stated research that it was
unlikely that Mr. Parrish's COPD and pulmonary fibrosis can be attributed to in-service ionizing
radiation exposure. R. at 219.
Subsequently, the C&P Director conducted radiation review5 and noted, inter alia, the
CPHEHO's medical opinion, the worst-case dosage estimates from DTRA, that Mr. Parrish's
conditions were diagnosed 40 years after exposure to ionizing radiation, and that Mr. Parrish
reported having been a smoker for 29 years. The C&P Director opined that there was no reasonable
possibility that Mr. Parrish's COPD and pulmonary fibrosis are the result of his exposure to ionizing
radiation in service. Thereafter, the RO issued a Supplemental Statement of the Case continuing the
denial of the claim. On appeal, the Board explained that the matter hinged on knowledge of the
amount of radiation exposure endured by Mr. Parrish. The Board denied disability compensation
because, inter alia, the CPHEHO's and C&P Director's opinions were based on complete historical
data with regard to Mr. Parrish's radiation exposure while Mr. Parrish's private physician's opinion
was not. Mr. Parrish timely appealed.
4
The CPHEHO opinion discusses dose estimates in terms of the "sievert" (sv), which is the unit of radiation
absorbed dose equivalent, defined as that producing the same biologic effect in a specified tissue as 1 gray of high-energy
x-rays; 1 sievert equals 100 rem. See D O RLAN D 'S at 1733.
5
Although the C&P Director's opinion is dated June 23, 2008, we presume that the date is an error because the
text of the C&P Director's opinion expressly refers to the "July 10, 2008, memorandum from the [CPHEHO], writing
for the under Secretary." R. at 220. Neither Mr. Parrish nor the Secretary raised, nor does the Court discern, any
prejudicial error here.
4
II. ANALYSIS
A. The Parties' Arguments
1. Primary Issue
Mr. Parrish argues that 38 C.F.R. § 3.311(c) designates the USB as the sole authority to make
the radiation determination required by § 3.311, and that 38 C.F.R. § 3.100 does not permit him to
delegate the authority to make this determination. Mr. Parrish further argues that, assuming
delegation is permitted, no such delegation has been made.
The Secretary argues that the USB complied with § 3.311(c) because he reviewed the matter
through his agent, the C&P Director, who reports directly to the USB, and that the USB has the
authority to designate supervisory personnel such as the C&P Director to make findings under
applicable law and regulation in accordance with 38 C.F.R. §§ 2.6(b) and 3.100. The Secretary
further contends that the issue of delegation was settled in Hilkert v. West, 12 Vet.App. 145 (1999)
(en banc). At oral argument, the Secretary asserted that the USB properly designated the C&P
Director to make decisions on his behalf in accordance with the Veterans Benefits Administration
Adjudication Procedures Manual (M21-1MR). See M21-MR, pt. IV, subpt. ii, ch. 1, sec. C.
This issue is discussed in subsection B, below.
2. Additional Issues
Mr. Parrish also argues that the Board provided an inadequate statement of reasons or bases
for its decision with regard to three additional issues. First, he argues that the C&P Director
inadequately explained his decision such that the Board erred when it did not seek another decision
in contravention of Stone v. Gober, 14 Vet.App. 116 (2000). Second, he argues that the Board
inadequately explained how the C&P Director's decision and the CPHEHO's opinion are more
probative than his private physician's opinion. Finally, he argues that the Board's statement is
inadequate because there is no evidence of record that the C&P Director has medical expertise or
training.
The Secretary contends that the Board's decision is explained adequately and is not clearly
erroneous. He reasons that the Board explained that the CPHEHO and the C&P Director provided
detailed reports based upon correct regulatory criteria, and the Board did not rely on the C&P
Director's decision as medical evidence.
5
These issues are discussed in subsection C, below.
B. Decision Process Under 38 C.F.R. § 3.311Veterans are awarded disability compensation for disabilities resulting from injuries or
diseases that are incurred in or aggravated by service. 38 U.S.C. §§ 1110 and 1310. For disability
compensation claims based upon in-service radiation exposure, the Secretary has established a
special adjudication process. See 38 C.F.R. § 3.311 (2010); see also Stone, 14 Vet.App. at 119;
Hilkert, supra.
Succinctly stated, radiation exposure claims must be referred to the USB for consideration
when a claimant, at a minimum, was exposed to ionizing radiation as a result of participation in the
atmospheric testing of nuclear weapons, 38 C.F.R. § 3.311(b)(1)(i), subsequently developed a
radiogenic disease, 38 C.F.R. § 3.311(b)(1)(ii), and, the radiogenic disease became manifest within
the period specified in 38 C.F.R. § 3.311(b)(5). If a condition is not recognized by regulation as a
"radiogenic disease," the claim nevertheless must be referred to the USB when a claimant "has cited
or submitted competent scientific or medical evidence that the claimed condition is a radiogenic
disease." 38 C.F.R. § 3.311(b)(4). Mr. Parrish's claim was forwarded to the USB pursuant to
subsection (b)(4).
Once forwarded, § 3.311(c) dictates the process. Pursuant thereto, the USB is required to
evaluate the claim with reference to specific criteria laid out in § 3.311(e). As noted in Hilkert, 12
Vet.App. at 149, because the USB's consideration of the claim "relies heavily on medical and
scientific findings and analysis, the [USB] may request an advisory opinion from the Under Secretary
for Health." The USB then forwards his decision, with supporting rationale, to the RO for
adjudication of the claim. 38 C.F.R. § 3.311(c) and (d). The C&P Director is not mentioned in the
regulation as having a role in this process, which forms the basis of Mr. Parrish's primary argument.
1. Hilkert is not Controlling
Contrary to the Secretary's contention, Hilkert, supra, is not binding or settled authority on
whether the USB may delegate, or has delegated, authority to the C&P Director to render the review
and determination called for in § 3.311(c). Although Hilkert includes a statement that the RO
"properly referred the claim to the Director of Compensation and Pension for review who acted on
behalf of the USB," 12 Vet.App. at 149, the authority to delegate was not an issue in the case.
6
Indeed, the issue was not argued or developed, and its resolution was not necessary to the outcome
of the case. See id. at 158 n.15 (Steinberg, J., dissenting) (noting that the appellant expressly
declined to challenge the issue of delegation of authority to the C&P Director and that the issue was
not addressed by the Court's decision). The passing mention of a proper referral, therefore, is dicta
that does not settle the issue. Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 352
n.12 (2005) ("Dictum settles nothing, even in the court that utters it."); BLACK'S LAW DICTIONARY
1101 (7th ed. 1999) (defining "obiter dictum" as "[a] judicial comment made during the course of
delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not
precedential).
2. Authority to Designate
Congress has vested the Secretary with broad authority to delegate and to authorize
successive redelegation with regard to all laws administered by the VA. Section 512 of title 38
provides in pertinent part:
(a) Except as otherwise provided by law, the Secretary may assign functions
and duties, and delegate, or authorize successive redelegation of, authority to
act and to render decisions, with respect to all laws administered by the
Department, to such officers and employees as the Secretary may find
necessary.
See 38 U.S.C. § 512(a) (emphasis added).
By regulation, the Secretary has vested the USB with "authority to act on all matters assigned
to the Veterans Benefits Administration except as provided in § 1.771[6] . . . and to authorize
supervisory or adjudicative personnel within his/her jurisdiction to perform such functions as may
be assigned." 38 C.F.R. § 2.6(b)(1) (2010). The authority to act on those matters within the realm
of the USB's authority is further delegated to supervisory or adjudicative personnel designated by
the USB, to wit:
(a) Authority is delegated to the Under Secretary for Benefits and to supervisory or
adjudicative personnel within the jurisdiction of the Veterans Benefits
Administration designated by the Under Secretary, to make findings and decisions
under the applicable laws, regulations, precedents, and instructions, as to entitlement
of claimants to benefits under all laws administered by the Department of Veterans
6
There currently is no provision of VA regulation at §1.771.
7
Affairs governing the payment of monetary benefits to veterans and their dependents,
within the jurisdiction of the Compensation and Pension Service.
See 38 C.F.R. § 3.100(a) (2010) (emphasis added).
Mr. Parrish does not dispute that the Secretary has broad statutory authority to delegate and
redelegate authority to act with respect to all laws administered by VA, and that he has delegated
authority to the USB to designate others under his control to make findings and render decisions with
regard to entitlement to VA benefits. Rather, Mr. Parrish argues that (1) the Secretary has restricted
the authority to make the radiation determination required by § 3.311 solely to the USB, and (2) the
regulatory history for § 3.311(c) impliedly prohibits delegation. In support of his first argument, Mr.
Parrish notes that § 3.311(c) cites only the USB as the officer to make the radiation determination
required by § 3.311, which he argues reflects the Secretary's decision that authority to make the
radiation determination may not be further delegated. In further support of this argument, Mr.
Parrish notes that 38 C.F.R. § 3.321(b), a provision addressing extraschedular rating determinations,
vests decisionmaking in either the USB or the C&P Director, reflecting that the Secretary knows how
to vest authority to act in more than one official when he so chooses.
Mr. Parrish's observations in support of his first argument ignore at least two facts that
demonstrate the Secretary did not restrict the broad authority of the USB granted in § 3.100(a) to
designate the C&P Director (or other supervisory or adjudicative personnel within the jurisdiction
of the Veterans Benefits Administration) to make the radiation determination required in § 3.311(c).
First, there has been a longstanding practice of the C&P Director making decisions under 38 C.F.R.
§ 3.311(c), as reflected in our caselaw over at least the past 19 years. See Davis v. Brown, 10
Vet.App. 209, 210 (1997) (noting that in April 1992, the RO referred the claim to the C&P Director);
see also Hilkert, 12 Vet.App. at 149 (noting that the RO forwarded the matter to the C&P Director
for review, who acted on behalf of the USB). The Secretary's awareness that the C&P Director has
been making the radiation determination, as demonstrated by cases the Secretary has litigated before
the Court, and his inaction, demonstrate's the Secretary's approval of the process, including the
delegation of authority. Cf. Bob Jones Univ. v. United States, 461 U.S. 574, 600-01 (1983) (noting
that Congress's awareness of an administrative agency's regulatory interpretation for 12 years and
Congress's failure to act on bills proposed on the subject the regulations interpreted provides support
8
that Congress acquiesced, and therefore agreed, with the agency's regulatory interpretation). Further,
although Hilkert is not controlling in this case as discussed above, the Court notes that Hilkert is
cited as authority for the promulgation of § 3.311. Thus, the procedures employed for a radiation
claim under § 3.311 in Hilkert are informative of VA's common practice in adjudicating these
claims.
Second, Veterans Benefits Administration's M21-MR establishes the procedure for
adjudicating claims under 38 C.F.R. § 3.311. The manual states that the RO should forward claims
to the C&P Service when the three requirements of 38 C.F.R. § 3.311(b)(1) are met. It also states
that the C&P Service is responsible for providing the RO with an opinion recommending either that
the claim be granted or denied. See M21-MR, pt. IV, subpt. ii, ch. 1, sec. C, 23-24; see also Brannon
v. Derwinski, 1 Vet.App. 314, 316 (1991) ("'[C]ourts may take judicial notice of facts of universal
notoriety, which need not be proved, and of whatever is generally known within their
jurisdictions.'"(quoting B.V.D. Licensing Corp. V. Body Action Deisgn, Inc., 846 F.2d, 727, 728
(Fed. Cir. 1988))). As head of the C&P Service, the C&P Director is an appropriate official to
provide such an opinion. And, as noted above, the Secretary's inaction with regard to directing any
change to the M21-MR reflects his acceptance of the procedures contained therein. Cf. Bob Jones
Univ., supra.
Contrary to Mr. Parrish's second argument, the regulatory history for § 3.311(c) does not
impliedly prohibit delegation. Mr. Parrish correctly notes that the first proposed version of §
3.311(c) vested decisionmaking in the then-titled chief medical director, but in response to comments
that referral to the chief medical director appeared to transfer rating jurisdiction from the then-named
Department of Veterans Benefits to the Department of Medicine and Surgery, the provision was
amended to clarify that the final decision rested with the then-titled chief benefits director and that
he could request an advisory opinion from the chief medical director. See 50 Fed. Reg. 34,452,
34,456 (Aug. 26, 1985).7 Although this is an accurate statement of the history of § 3.311(c), it fails
7
"Chief benefits director" and "chief medical director" are former titles for the "under secretary for benefits"
and "under secretary for health," respectively. The titles were changed to their current form only to match the correct
statutory titles. See 60 Fed. Reg. 9627 (Feb. 21, 1995). Moreover, the "Department of Veterans Benefits" and the
"Department of Medicine and Surgery" are former titles for the "Veterans Benefits Administration" and "Veterans Health
Administration," respectively.
9
to show any intent on the part of the Secretary to prohibit designation of responsibility to officers
who are within the Department of Veterans Benefits today, such as the C&P Director. Rather, the
history indicates only that the Secretary intended to clarify that jurisdiction to decide veterans-
benefits matters remained with the appropriate administration.
3. Designation of C&P Director
Mr. Parrish contends that even if the USB had the authority to delegate authority to the C&P
Director to make the radiation determination required by § 3.311(c), the USB never did so. At oral
argument, Mr. Parrish noted that VA directives entitled "Delegations of Authority" establish VA
policy that authority may be delegated only through written delegation memoranda, if not otherwise
delegated by statute or VA regulation. See, e.g., VA Directive 0000 (2009), available at
http://www.va.gov/vapubs/search_ action.cfm?dType=1. He further noted that there is no evidence
in the record on appeal that a corresponding delegation memorandum has been executed that
delegates authority to the C&P Director. Mr. Parrish therefore argued that the C&P Director's
radiation determination was ultra vires.
Initially we note that Mr. Parrish cites to nothing in the record indicating he raised this issue
below, or that it reasonably was raised by the record; thus it was not error for the Board to not
develop or address this issue. See Pond v. West, 112 Vet.App. 341 (1999) (Board is required to
develop all issues reasonably raised below); Talbert v. Brown, 7 Vet.App. 352, 356 (1995) (noting
that the Board must address reasonably raised issues and is not obligated to "conduct an exercise in
prognostication"). Accordingly, it also is not surprising that a delegation memorandum is not in the
record on appeal as it was not an issue below, and the simple fact that such a memorandum is not
in the record fails to overcome the presumption that government officials generally discharge their
duties in accordance with the law and governing regulations. Rizzo v. Shinseki, 580 F.3d 1288, 1292
(2009) ("'[T]he doctrine . . . allows courts to presume that what appears regular is regular, the burden
shifting to the attacker to show the contrary,'" and stating that "nothing in this Court's precedent
limits the presumption to procedural matters") (quoting Butler v. Principi, 244 F.3d 1337, 1340
(2001))); Borg-Warner Corp. v. Comm'r, 660 F.2d 324, 330 (7th Cir. 1981) (Under the presumption
of regularity and in the absence of any indication to the contrary, it is presumed that authority has
been delegated properly. (citing United States v. Ahrens, 530 F.2d 781, 786 (8th Cir. 1976) and
10
Lesser v. U.S., 368 F.2d 306, 309 (2d Cir. 1966))); United States v. Masusock, 1 U.S.C.M.A. 32, 36-
37 (1951) (same); see also Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990) ("Advancing different
arguments at successive stages of the appellate process does not serve the interests of the parties or
the Court. Such a practice hinders the decision-making process and raises the undesirable specter of
piecemeal litigation.").
Moreover, Mr. Parrish essentially ignores the broad authority to act on matters within the
jurisdiction of the Veterans Benefits Administration that has been delegated in regulation by the
Secretary to the USB and any persons designated by the USB. See 38 C.F.R. § 3.100(a). In this
context, the specific requirements of VA Directive 0000 (2009) are inapposite, as it addresses
delegation, as opposed to designation. Although the M21-MR does not specifically designate the
C&P Director to render the radiation determination, it clearly places responsibility for the radiation
determination with the C&P Service, which implicitly designates the C&P Director to exercise the
authority delegated in § 3.100(a). In sum, we find a proper delegation of authority in § 3.100(a), and,
in the M21-MR, a proper designation of the C&P Director to exercise that delegation of authority.
Accordingly, Mr. Parrish's contention that the C&P Director's decision is ultra vires is without merit.
C. Remaining Issues on Appeal
The record does not support Mr. Parrish's other argument that the Board provided an
inadequate statement of reasons or bases. In support of his argument, Mr. Parrish asserts that the
Board (1) relied on an inadequately explained decision of the C&P Director under 38 C.F.R.
§ 3.311(c)(1), contravening Stone, supra, and (2) inadequately explained how the C&P Director's
decision and the CPHEHO's opinion are more probative than his private physician's opinion because
(a) both opinions are, themselves, explained inadequately and (b) there is no evidence of record that
the C&P Director has medical expertise or training.
1. The Board's Duty To Provide Adequate Rationale and the Court's Standard of Review
Decisions of the Board shall be based on all applicable provisions of law and regulation, and
the Board shall provide a written statement of reasons or bases for its conclusions. See 38 U.S.C.
§ 7104(a), (d)(1). The Board is not required to discuss all of the evidence of record, see Dela Cruz
v. Principi, 15 Vet.App. 143, 149 (2001), but it should not reject evidence favorable to the claimant
without discussing that evidence, see Meyer v. Brown, 9 Vet.App. 425, 433 (1996), and its overall
11
statement "must be adequate to enable a claimant to understand the precise basis for the Board's
decision, as well as to facilitate review in this Court." Allday v. Brown, 7 Vet.App. 517, 527 (1995).
Moreover, the Board may find an unfavorable medical opinion more probative than a favorable one
as long as it articulates understandable and valid reasons for doing so. Nieves-Rodriguez v. Peake,
22 Vet.App. 295, 300 (2008); see also Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007).
The Board's findings regarding the probative value of medical opinions, as well as its
ultimate finding whether a disability is service connected, is subject to the "clearly erroneous"
standard of review. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (Board's assignment of greater
probative weight to one medical opinion than to another is subject to the "clearly erroneous" standard
of review); see also Russo v. Brown, 9 Vet.App. 46, 50 (1996) (noting that a finding of service
connection, or lack thereof, is a finding of fact reviewed under the "clearly erroneous" standard of
review). A finding is clearly erroneous when "'although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)); see also Padgett v. Nicholson, 19 Vet.App. 133, 147-48 (2005).
2. Substantive Requirements for Decisions Under 38 C.F.R. § 3.311Section 3.311(c)(1) also requires a certain degree of detail in decisions made thereunder. It
provides in pertinent part:
(1) [T]he Under Secretary for Benefits shall consider the claim with reference to the
factors specified in paragraph (e) of this section and may request an advisory medical
opinion from the Under Secretary for Health.
(i) If after such consideration the Under Secretary for Benefits is convinced sound
scientific and medical evidence supports the conclusion it is at least as likely as not
the veteran's disease resulted from exposure to radiation in service, the Under
Secretary for Benefits shall so inform the regional office of jurisdiction in writing.
The Under Secretary for Benefits shall set forth the rationale for this conclusion,
including an evaluation of the claim under the applicable factors specified in
paragraph (e) of this section.
(ii) If the Under Secretary for Benefits determines there is no reasonable possibility
that the veteran's disease resulted from radiation exposure in service, the Under
Secretary for Benefits shall so inform the regional office of jurisdiction in writing,
setting forth the rationale for this conclusion.
12
See 38 C.F.R. § 3.311(c)(1). Applicable factors under subsection (e) are the following:
(1) The probable dose, in terms of dose type, rate and duration as a factor in inducing
the disease, taking into account any known limitations in the dosimetry devices
employed in its measurement or the methodologies employed in its estimation;
(2) The relative sensitivity of the involved tissue to induction, by ionizing radiation,
of the specific pathology;
(3) The veteran's gender and pertinent family history;
(4) The veteran's age at time of exposure;
(5) The time-lapse between exposure and onset of the disease; and
(6) The extent to which exposure to radiation, or other carcinogens, outside of service
may have contributed to development of the disease.
38 C.F.R. § 3.311(e). If the USB ultimately recommends that there "is no reasonable possibility that
the veteran's disease resulted from radiation exposure in service,"see 38 C.F.R. § 3.311(c)(1)(ii), the
USB is not required to discuss in his decision each of the subsection (e) factors. Hilkert, 12
Vet.App. at 149. Rather, the factors should be considered and consulted as a point of reference. Id.
at 149-50.
3. The Board's Decision is Adequately Explained and is Not Clearly Erroneous
Mr. Parrish relies on Stone, supra, for the proposition that the C&P Director's decision here
lacked sufficient explanation as to why there is no reasonable possibility that Mr. Parrish's conditions
resulted from radiation exposure in service. In Stone, the radiation decision provided by the USB
was cursory and lacked discussion of any of the § 3.311(e) factors. Specifically, the USB stated:
"We have received a medical opinion from the Under Secretary [for Health], with which we agree,
that advises it is unlikely that the veteran's carcinoma of the rectum and anal area resulted from his
exposure to ionizing radiation in service." Stone, 14 Vet.App. at 120. The Court further noted that
"[t]here is no articulation of the Board's reasons for finding the [USB's] opinion convincing, but
rather a mere restatement of [the USH's medical] opinion in conjunction with the denial of
presumptive service connection." Id.
In contrast to the circumstances in Stone, the Board here noted the C&P Director's discussion
of (1) Mr. Parrish's in-service radiation exposure history, including dose rem data, (2) race, sex, age,
and personal data, (3) family history of cancer, postemployment history, and 29-year history of
smoking, (4) the CPHEHO's report, which found no statistically significant association between Mr.
Parrish's conditions and dose response to radiation exposure, and (5) the fact that COPD and
13
pulmonary fibrosis were diagnosed 40 years after in-service ionizing radiation exposure. Thus, the
C&P Director's decision was neither cursory nor lacking in discussion, and the Board did not err in
relying on it. Mr. Parrish also fails to otherwise point to any evidence that the C&P Director's
decision failed to substantively comply with § 3.311(c)(1) or our holding in Hilkert, supra.
Although Mr. Parrish asserts that the stated information still fails to explain adequately the
C&P Director's ultimate decision, he ignores the commonsense meaning of each stated fact, and that
the C&P Director's conclusion flows naturally from the sum of those meanings. For instance, the
C&P Director noted that (1) the CPHEHO report found no statistically significant association
between Mr. Parrish's conditions, (2) smoking is a factor, and (3) Mr. Parrish admitted that he
smoked for 29 years and Mr. Parrish also was not diagnosed with his lung conditions until 40 years
after in-service exposure. The C&P Director, concluded, then, that there is no reasonable possibility
that Mr. Parrish's conditions resulted from exposure to in-service radiation.
Although not stated with the highest degree of precision, the C&P Director's decision is
understandable and the Board did not commit error when it relied on it. See McClain v. Nicholson,
21 Vet.App. 319, 321 (2007) (noting that although clarity certainly is preferred, it "is not and cannot
be demanded in every instance or finality would forever be delayed pending perfection in
draftsmanship"); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (recognizing that
lengthy periods of time without symptoms or treatment can weigh against a claim); Polovic v.
Shinseki, 23 Vet.App. 48, 54 (2009) (noting that the Board may not award benefits when the award
would be based upon pure speculation). This is particularly so because it is the Board that ultimately
is required by statute to explain its decisionmaking. 38 U.S.C. § 7104(d)(1); see, e.g., Gabrielson
v. Brown, 7 Vet.App. 36, 40 (1994) (discussing that it is the Board, not medical examiners, that has
the duty to discuss favorable evidence in a statement of reasons or bases).
Similarly, we find unsupported Mr. Parrish's assertions that the Board inadequately explained
why both the CPHEHO's opinion and the C&P Director's decision outweighed his private physician's
report. As we explained in Nieves-Rodriguez, and as was noted by the Board below, the foundation
and rationale of a medical opinion are crucial when the Board compares medical opinions and
assesses the weight to be provided thereto. Id. It is axiomatic that a medical examiner must be
informed of the "relevant facts" in order to render a probative opinion. Id. at 303.
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The Board here noted that Mr. Parrish's private physician essentially opined that Mr. Parrish's
conditions were caused by several factors including radiation exposure and smoking, and stated that
he was not aware of Mr. Parrish's actual radiation exposure count. In contrast, the Board explained
that the CPHEHO's opinion was based upon the worst-case estimate of in-service radiation exposure
and that the CPHEHO found it unlikely that Mr. Parrish's lung conditions were caused by in-service
radiation exposure. Although Mr. Parrish argues that the Board did not explain why knowledge of
the amount of radiation is particularly important, it is commonly understood that the degree of
radiation exposure is a factor for consideration when assessing the relationship of disease to radiation
exposure. Moreover, VA regulations require radiation exposure dose estimates, see 38 C.F.R.
§ 3.311(a), and Mr. Parrish's private physician essentially said that he could not render an accurate
opinion without such information.
Mr. Parrish's final argument is that the Board did not explain why it found the C&P Director's
decision was more probative than his private physician's opinion when the record contains no
evidence that the C&P Director is a qualified medical professional. As noted by the Secretary, the
C&P Director's decision is not medical evidence per se. Rather, it is a decision that is based upon
the factors in § 3.311(e), as well as an advisory medical opinion. Hilkert, 12 Vet.App at 149
(recognizing that, because the decision under § 3.311(c) is to be based on sound scientific evidence,
an advisory medical opinion may be requested). The Board explained that the C&P Director based
his decision on the CPHEHO's medical opinion, which was found to be more probative than the
medical opinion provided by Mr. Parrish's private physician. Accordingly, the Board's weighing of
the medical evidence is understandable and facilitative of judicial review. See Allday, supra. And,
based on the record on appeal, the Board's findings are plausible and not clearly erroneous. See
Russo and Owens, both supra; see also Gilbert, supra.
III. CONCLUSION
Upon consideration of the foregoing, the Board's February 9, 2009, decision is AFFIRMED.
DAVIS, Judge, concurring: While I concur with the judgment of the majority opinion, I write
separately to express my disagreement with the majority's analysis and resolution of Mr. Parrish's
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argument that, even if the USB had the authority to make a delegation to the C&P Director to
conduct the radiation determination required by 38 C.F.R. § 3.311(c), he never did so. Mr. Parrish
argues that there is no evidence in the record that a delegation memorandum designating the C&P
Director was executed, as required by VA policy. See II.B.3, ante. The majority states: "it is ... not
surprising that a delegation memorandum is not in the record on appeal . . . and the simple fact that
such a memorandum is not in the record fails to overcome the presumption that government officials
generally discharge their duties in accordance with the law and governing regulations." Ante at 10.
"There is a presumption of regularity under which it is presumed that government officials
'have properly discharged their official duties.'" Ashley v. Derwinski, 2 Vet.App. 307, 308 (1992)
(quoting United States v. Chem. Found., Inc., 47 S. Ct. 1 (1926)). "However, '[t]he presumption of
regularity is not absolute; it may be rebutted by the submission of clear evidence to the contrary.'"
Jones (Raymond) v. West, 12 Vet.App. 98, 100 (1998) (quoting Ashley, 2 Vet.App. at 309) (alteration
in original).
My problem with the majority's analysis is the leap the majority takes in applying the
presumption of regularity to the delegation area–an area that is a bit more involved than simply
performing a procedural or ministerial act. Significantly, in previous decisions, this Court has
applied the presumption of regularity to issues primarily involving the delivery or receipt of mail,
which are procedural and ministerial acts. In March v. Nicholson, the Court recounted that it had
applied the presumption of regularity to processes and procedures throughout the VA
administrative process. See, e.g., Crain v. Principi, 17 Vet.App. 182, 186 (2003)
(applying the presumption of regularity to RO's mailing of a Statement of the Case
to a veteran); Redding v. West, 13 Vet.App. 512, 515 (2000) (applying the
presumption of regularity as to whether RO received the veteran's power of attorney);
Baldwin v. West, 13 Vet.App. 1, 5-6 (1999) (applying the presumption of regularity
as to whether RO examined and considered service medical records); Schoolman v.
West, 12 Vet.App. 307, 310 (1999) (applying the presumption of regularity as to
whether RO sent to claimant the application form for dependency and indemnity
compensation); Davis [v. Brown], 7 Vet.App. [298,] 300 [(1994)] (applying the
presumption of regularity to the Board's mailing of a copy of a Board decision to a
veteran); Mindenhall [v. Brown], 7 Vet.App. [271,] 274 [(1994)] (applying the
presumption of regularity to a RO's mailing of a VA decision to a veteran).
19 Vet.App. 381, 385 (2005). More recently, the Court has applied the presumption of regularity
to issues involving mailings or filings in Kyhn v. Shinseki, 24 Vet.App. 228 (2011); Fithian v.
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Shinski, 24 Vet.App. 146 (2010); Posey v. Shinseki, 23 Vet.App. 406 (2010); Irwin v. Shinseki, 23
Vet.App. 128 (2009); and Clarke v. Nicholson, 21 Vet.App. 130 (2007).
Here, the majority seeks to extend the presumption of regularity in a manner that would
require Mr. Parrish to (1) realize that a document he did not know existed actually did exist, (2)
search files maintained by VA for that document, and (3) obtain the document. Moreover, the
document at issue here, a delegation of authority, is a document that VA would both initiate and have
total control over creating, not Mr. Parrish. For the majority to imply that Mr. Parrish somehow
failed to produce a delegation document shifts the burden from the Secretary, who is in the best
position to produce evidence of the existence of a delegation, to the appellant–the person in the worst
position to produce such a delegation document.
In Johnson (L.E.) v. Shinseki, 23 Vet.App. 344 (2010), Judge Hagel wrote a concurring
opinion addressing a similar conundrum, where, in order to rebut the presumption of regularity, the
veteran needed evidence that "remain[ed] exclusively in VA's control." 23 Vet.App. at 350 (Hagel,
J., concurring). Judge Hagel wrote that this created "an unduly onerous path for a veteran to rebut
the presumption of regularity." Id. He continued: "In practice, requiring a veteran to navigate the
VA administrative system to which he has no access to find out whether [documents were
transmitted in a regular manner according to procedure] would transform the rebuttable presumption
of regularity into an essentially irrebuttable presumption." Id. Just as Judge Hagel was not willing
to extend the presumption of regularity in Johnson, I am not willing to extend the presumption of
regularity to such a point in this case.
Alternatively, in order to comply with the majority's stance, Mr. Parrish could have (1)
recognized that a delegation of authority could have allowed the USB to comply with the statute and
that a designation was not contained in the record and (2) called this deficiency to the Court's and
the Secretary's attention in his initial brief. The Secretary could have then searched VA's files and
provided the delegation memorandum or responded in his brief that a designation had been made
from the USB to the C&P Director in a format other than a delegation memorandum.
In his initial brief, Mr. Parrish specifically argued that "[n]othing in [§] 3.311 provides that
the USB may delegate this responsibility to the C&P Director" (Appellant's Brief at 7) and that "the
Secretary cites nothing in the record indicating that the USB delegated his responsibility under
17
section 3.311(c) to the C&P Director in this case" (Appellant's Reply Brief at 4) (emphasis in
original).
Yet the Secretary, in his response, merely cited to 38 C.F.R. § 3.100 and stated that the USB
"has the general authority to designate supervisory personnel of [VA] to make findings under
applicable law and regulations," and that the C&P Director reports directly to the USB. Secretary's
Brief at 6. The Secretary's brief would have been the appropriate time to point the Court's and Mr.
Parrish's attention to the applicable provision of the M21-MR, which effectively designates the C&P
Director to exercise the authority delegated in § 3.100(a). It would have also been appropriate and
in compliance with Rule 30 of the Court's Rules of Practice and Procedure for the Secretary to file
a letter of supplemental authority with the Court citing this pertinent and significant authority if it
were newlydiscovered after his briefs were filed. (However, if VA's procedure truly has been so
clear cut and the delegation so long standing, surely the Secretary should have presented the
argument to the Court at the first possible opportunity, rather than the last.) Yet the Court notes that
it was only at oral argument that the Secretary argued that the M21-MR provision constitutes a
delegation of the USB's authority in accordance with § 3.100(a). For the majority to conclude that
Mr. Parrish should have obtained the document in order to rebut the presumption of authority–when
the Secretary could not be bothered to provide it to the Court until oral argument–is truly placing an
undue burden on the appellant.
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