Steele v. McDonough

Case: 20-1166 Document: 37 Page: 1 Filed: 04/13/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

BRANDON A. STEELE, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2020-1166 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 17-4194, Senior Judge Robert N. Davis. ______________________

Decided: April 13, 2021 ______________________

BRANDON ALEXANDER STEELE, Daytona Beach, FL, pro se.

ANN MOTTO, Commercial Litigation Branch, Civil Divi- sion, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by CLAUDIA BURKE, JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN, JR.; BRANDON A. JONAS, Y. KEN LEE, Office of General

Case: 20-1166 Document: 37 Page: 2 Filed: 04/13/2021 2 STEELE v. MCDONOUGH

Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________

Before MOORE, REYNA, and STOLL, Circuit Judges. REYNA, Circuit Judge. Brandon Steele appeals a decision of the Court of Ap- peals for Veterans Claims that upholds a Board of Veter- ans’ Appeals determination that a 1999 Regional Office ratings decision was not based on clear and unmistakable error. Mr. Steele asserts on appeal that the ratings deci- sion was based on speculation and a misapplication of the law. We agree with the Court of Appeals for Veterans Claims decision that the ratings decision was not based on clear and unmistakable error. For the reasons below, we affirm. BACKGROUND Appellant Brandon Steele served honorably in the Ma- rine Corps from November 1995 until August 1999. J.A. 68. He entered the military with no knee problems. He experienced pain in his knees during recruit training and was then diagnosed with patellofemoral pain syndrome (“PFPS”) and patellofemoral syndrome (“PFS”). J.A. 68– 69. Knee imaging showed no mineralization, and an un- dated service medical record listed treatment for PFPS without specifying which knee was treated. J.A. 69. His separation report of medical history states that he was treated for PFPS on his left knee. Id. In 1999, while still on active duty and before his sepa- ration from the service, Mr. Steele applied for service con- nected disability benefits for his alleged disabilities in both knees. Id. The Veterans Administration (“VA”) conducted an examination and the examiner noted that Mr. Steele complained of right knee pain, weakness, and lack of en- durance. J.A. 174. Mr. Steele reported that his ability to

Case: 20-1166 Document: 37 Page: 3 Filed: 04/13/2021 STEELE v. MCDONOUGH 3

perform weight-bearing activities was “somewhat reduced” during pain flare-ups. Id. The examination uncovered “no evidence of heat, swelling, effusion, draining, abnormal movement, instability, or weakness” in his knees. J.A. 178. Range of motion tests and x-rays showed no abnormalities. J.A. 178–89. Under “Diagnosis,” the examiner entered a note stating “[c]hronic [PFPS] of the left knee, resolved; [PFS] of the right knee.” J.A. 179. The examiner further noted that his diagnosis was “based, subjectively, on the basis of the veteran’s related history of having left-greater- than-right knee pain,” and that the examiner’s tests re- vealed “tenderness and slight laxity of the patellofemoral complex on the left side, with a normal examination of the right knee.” J.A. 179–80. On November 22, 1999, the Regional Office (“RO”) is- sued a ratings decision granting Mr. Steele a ten percent disability rating for his left knee and a zero percent rating for his right knee. J.A. 169–71. In reaching this conclu- sion, the RO stated: “[T]he preponderance of evidence fails to show any current disability associated with the [right] knee. Pain, in and of itself, is not a disability for which service connection may be established in the absence of a pathological process to account for the pain.” J.A. 171. Mr. Steele did not appeal this decision and it became final. J.A. 127. Fourteen years later, in November 2014, Mr. Steele filed a motion to revise the RO decision, alleging that the RO decision was based on clear and unmistakable error (“CUE”). J.A. 71. The VA denied the motion, J.A. 163–66, and Mr. Steele filed a notice of disagreement. In a state- ment of the case, the VA continued to deny Mr. Steele’s CUE claim. Thereafter, Mr. Steele appealed to the Board of Veterans’ Appeals (“Board”), J.A. 71. In October 2017, the Board determined that Mr. Steele’s appeal was effectively a “disagreement with the weighing of the evidence and factual determinations the

Case: 20-1166 Document: 37 Page: 4 Filed: 04/13/2021 4 STEELE v. MCDONOUGH

RO reached,” and did not sufficiently demonstrate CUE. J.A. 127. While the Board recognized the diagnosis of PFS in the right knee, the Board noted that the examiner found the range of motion, x-rays, and examination of the knees to be “absolutely normal” and observed that there was “no evidence of a current right knee disability.” Id. The Board found no CUE because the RO decision was reasonably supported by evidence of record at the time and consistent with the laws and regulations then in effect. Id. Mr. Steele appealed the Board’s decision to the Court of Appeals for Veterans Claims (“CAVC”). While his appeal was pending before the CAVC, and after Mr. Steele filed his principal brief, our court issued its opinion in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As relevant here, in Saunders this court vacated a decision of the CAVC that pain alone, without an accompa- nying pathology or identifiable condition, could not consti- tute a disability under § 1110. Saunders, 886 F.3d at 1361. We held that pain alone may constitute a functional im- pairment because it “diminishes the body’s ability to func- tion,” and it need not be diagnosed as connected to any condition in order to cause that impairment. Id. at 1364. The VA argued in its response brief that Saunders does not apply to this case. J.A. 78–85. Because the CAVC’s original memorandum decision affirming the Board did not address Saunders, Mr. Steele moved for reconsideration, which was granted. J.A. 29–43. In a new memorandum, the CAVC maintained its affirmance of the Board’s deci- sion that the RO decision was not based on CUE. J.A. 3– 10. This appeal followed. We have jurisdiction pursuant to 38 U.S.C. § 7292(a). DISCUSSION Our authority to review decisions of the CAVC is lim- ited. We may review, without deference, interpretations of

Case: 20-1166 Document: 37 Page: 5 Filed: 04/13/2021 STEELE v. MCDONOUGH 5

constitutional and statutory provisions. 38 U.S.C. § 7292(a), (d)(1). We must hold unlawful and set aside any regulation or interpretation thereof relied upon by the CAVC that is (a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (b) con- trary to constitutional right, power, privilege, or immunity; (c) in excess of statutory jurisdiction, authority, or limita- tions, or in violation of a statutory right; or (d) without ob- servance of procedure required by law. 38 U.S.C. § 7292(d)(1). Absent a constitutional issue, we cannot review findings of fact or otherwise reweigh the fac- tual evidence. Singleton v. Shinseki, 659 F.3d 1332, 1334 (Fed. Cir. 2011). Congress has provided veterans with two methods for modifying or reversing a final VA decision after the time for appeal has run. The veteran can seek a readjudication based on new and relevant evidence, 38 U.S.C. § 5108, or the veteran can establish that the VA decision was based on a clear and unmistakable error (“CUE”). 38 U.S.C. §§ 5109A, 7111(e). This appeal concerns the lat- ter. The veteran bears the burden of proving CUE. See Pierce v. Principi, 240 F.3d 1348, 1355 (Fed. Cir. 2001). The veteran must prove three elements to establish CUE: (1) that the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions in effect at the time were incorrectly applied; (2) that the error is “undebatable” and outcome de- terminative, such that it would have “manifestly changed the outcome” at the time the decision was made; and (3) “a determination that there was CUE must be based on the record and the law that existed at the time of the prior ad- judication in question.” Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008). An error is undebatable if reasona- ble minds could only conclude that the decision was flawed at the time it was rendered, Russell v. Principi, 3 Vet. App. 310, 313–14 (1992), and “no reasonable adjudicator could

Case: 20-1166 Document: 37 Page: 6 Filed: 04/13/2021 6 STEELE v. MCDONOUGH

weigh the evidence in the way that the adjudicator did,” Willsey, 535 F.3d at 1372. On appeal, Mr. Steele argues that the RO decision was CUE because it was not based on the law that applied at the time the decision was reached. Specifically, Mr. Steele contends that our holding in Saunders has retroactive ap- plication because it is not a statutory interpretation, but rather an authoritative statement of the law as it existed when the RO rendered its decision. According to Mr. Steele, unlike a statutory interpretation that provides a new understanding or meaning to the law, an authoritative statement has retroactive-like effect because it explains the meaning of the law prior to any subsequent interpreta- tions. In support, Mr. Steele cites the CAVC’s decision in Perciavalle v. Wilkie, 32 Vet. App. 59 (2019), arguing that the decision distinguishes between an authoritative state- ment and a subsequent statutory interpretation. Appel- lant Br. 7; see also Perciavalle, 32 Vet. App. at 65 (“[A] changed interpretation cannot be the ‘first commentary’ on a regulation or statute as there exists no precursor inter- pretation that the latter modifies, alters, or replaces[.]”). Mr. Steele therefore contends that the RO’s failure to apply Saunders resulted in a misapplication of the statute or reg- ulation then in effect. We disagree. We recently clarified in George v. McDonough that whether an interpretation is a first interpretation or a change in existing interpretation, it cannot serve as a basis for CUE. No. 2019-1916, 2021 WL 968847, at *6 (Fed. Cir. Mar. 16, 2021) (“That Wagner was the first judicial inter- pretation of § 111 by this court does not lead to a contrary result.”). We expressly noted in George that our precedent does not support the view that a new judicial pronounce- ment can retroactively apply to final decisions of the VA. Id. at *7. Consequently, we need not decide whether Saun- ders was an authoritative statement or a change in inter- pretation because neither can form the basis for CUE.

Case: 20-1166 Document: 37 Page: 7 Filed: 04/13/2021 STEELE v. MCDONOUGH 7

In addition, Mr. Steele argues that the Board improp- erly substituted the Board’s opinion for that of a medical examiner, in violation of 38 U.S.C. § 7104(d)(1). We con- clude that Mr. Steele does not demonstrate an error of law. The CAVC upheld various factual decisions of the Board, including that the evidence of record did not establish a right knee abnormality. J.A. 8. Indeed, the examiner noted “a normal examination of the right knee,” J.A. 179– 180, and a normal range of motion and x-ray of the right knee, J.A. 127. At best, Mr. Steele wants this court to re- weigh the factual record, which we cannot do. CONCLUSION We affirm the CAVC decision that Mr. Steele has failed to demonstrate CUE in the 1999 RO decision. We have considered the parties’ remaining arguments and find them unpersuasive. AFFIRMED COSTS No costs.