Douglas v. Derwinski

2 Vet. App. 435, 1992 U.S. Vet. App. LEXIS 128, 1992 WL 105480
United States Court of Appeals for Veterans Claims·Decided May 21, 1992·No. No. 90-678·Published·Cited by 96 cases

Opinion

STEINBERG, Associate Judge, filed the opinion of the Court.

STEINBERG, Associate Judge:

Because this opinion overrules a portion of Sawyer v. Derwinski, 1 Vet.App. 130, 135 (1991), this case has been presented to the full Court for en banc consideration. See Bethea v. Derwinski, 2 Vet.App. 252, 254, (1992) (“only the en banc Court may overturn a panel decision”).

In an earlier opinion in this case, dated January 24, 1992, the Court vacated the decision of the Board of Veterans’ Appeals (BVA or Board) and remanded the record for readjudication. Douglas v. Derwinski, 2 Vet.App. 103 (1992) (hereafter referred to as Douglas I). On February 21, 1992, the Secretary of Veterans Affairs (Secretary) filed a motion for reconsideration or, in the alternative, en banc review. The Secretary makes the following primary arguments: (1) the BVA was not required to consider, under 38 C.F.R. § 3.303(a) (1991), the issue of direct service connection for appellant’s basal-cell carcinoma; (2) 38 C.F.R. § 3.103(c)(2) (1991), governing hearing rights, does not apply to the Board in its conduct of hearings; (3) 38 U.S.C. § 7722(c) (previously contained in § 241(2)) does not apply generally to the BVA; and (4) in the evaluation of claims based on exposure to ionizing radiation, the BVA is not required to apply the standard of review set forth in 38 C.F.R. § 3.311b(c)(l)(ii) (1991), but, rather, is required to apply the more traditional standard set forth in paragraph (f) of the regulation. Appellee’s Motion for Reconsideration (Mot. for Recons.).

For the reasons set forth below, the en banc Court will grant the Secretary’s motion for review, and reaffirm all parts of the January 24, 1992, opinion with the exception of the part relating to the Secretary’s fourth contention above, and vacate that portion of Douglas I, specifically, part II.E., 2 Vet.App. at 110-11. The Secretary’s motion for panel reconsideration will be denied as moot. On May 4, 1992, the Court received from the Secretary notice of action taken by the BVA in this case to comply with the Court’s January 24, 1992, opinion. See Douglas I, 2 Vet.App. 103. The BVA had issued a decision on April 8, 1992, remanding the record to the originating agency for the submission of additional evidence on the issue of direct service connection for basal-cell carcinoma and actinic keratosis, for the conduct of a thorough medical examination, and for adjudication of the issue of direct service connection for skin diseases resulting from in-service exposure to the sun. Since the Court will affirm all parts of Douglas I that relate to the Board’s remand order, its instructions to the originating agency are not in conflict with this opinion.

We will summarize the facts previously before the Court and the Court’s conclu[438]*438sions in Douglas I, and will then address the Secretary’s objections to those conclusions.

I.

The appellant appealed to the Court the BVA’s March 23, 1990, denial of his claim for service connection for basal-cell carcinoma of the neck. Charles M. Douglas, BVA 89-03499 (Mar. 23, 1990). He claimed that the carcinoma resulted from his exposure at the close of World War II to ionizing radiation from the atomic bomb site at Hiroshima. Ibid.

Medical evidence submitted by the veteran to the Department of Veterans Affairs (VA or Department) suggested that his basal-cell carcinoma may have resulted directly from excessive exposure to the sun during his tenure as a deckhand in the Navy, and the veteran’s representative thrice raised this alternative ground at a hearing before the BVA. Douglas I, 2 Vet.App. at 106-07. However, the BVA made no findings with regard to this contention, addressing only whether exposure to ionizing radiation could have caused the veteran’s illness. Regarding the possibility of direct service connection, the Court found the BVA’s decision defective for failing (1) to consider the entire evidence pursuant to 38 U.S.C. § 7104(a) (formerly § 4004) and 38 C.P.R. § 3.303(a); (2) to provide adequate reasons or bases, pursuant to 38 U.S.C. § 7104(d)(1), for its findings; (3) to fulfill its statutory duty to assist, under 38 U.S.C. § 5107(a) (formerly § 3007), and its related obligations under 38 U.S.C. § 7722(c); and (4) to adhere to 38 C.F.R. § 3.103(c)(2). In addition, the Court held that the BVA’s decision was defective because the Board did not apply to the radiation claim the standard of review set forth in 38 C.F.R. § 3.311b(c)(l)(ii).

II.

A. Consideration of the Entire Evidence

In its earlier opinion, the Court held that the BVA had failed to adhere to 38 U.S.C. § 7104(a) and 38 C.F.R. § 3.303(a), which require that the Board consider the entire evidence of record in making its decisions. The Court enumerated several references in the record to the veteran’s fair skin, substantial exposure to the sun during service, and resulting medical problems, which implied a claim under 38 U.S.C. § 1110 (formerly § 310) and 38 C.F.R. § 3.303(a), for direct service connection for basal-cell carcinoma arising from sun exposure. Douglas I, 2 Vet.App. at 107. Moreover, the Court pointed out the three times that the veteran’s representative at the BVA hearing had urged consideration of the theory of direct service connection based on sun exposure. Id. at 106. Evidence supporting the viability of this theory was before the BVA but was either not considered by it, or, in the alternative, considered but not addressed in its decision.

The Secretary now argues that neither the case law nor the regulations “compel[ ]” the Court’s holding. Mot. for Recons. at 4. He further argues that, under 38 C.F.R. § 19.123 (1991), the Board is required to address only issues raised in the VA Form 1-9 (substantive appeal to the BVA) or those which may be reasonably construed from that document. Ibid. We disagree with the Secretary and conclude that the statute, regulations, and case law clearly support the Court’s holding that the Board was required to consider all the evidence and that it failed to do so here.

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Douglas v. Derwinski, 2 Vet. App. 435, 1992 U.S. Vet. App. LEXIS 128, 1992 WL 105480 (Cal. 1992).

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