Veteranclaims’s Blog

August 12, 2022

FedCir. Application; 38 U.S.C. § 1116 establishes a presumption of service connection for certain ailments associated with exposure to toxic materials such as Agent Orange; Terry, 340 F.3d at 1386 (“[W]hen sections 1110 and 1111 are read together, ‘the term defect in section 1111 necessarily means a defect that amounts to or arises from disease or injury.’”) (quoting Winn v. Brown, 8 Vet. App. 510, 516 (1996));

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit


DANIEL GONZALEZ,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-1885


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-8244, Judge Joseph L. Falvey,
Jr.


Decided: August 12, 2022


DANIEL GONZALEZ, San Antonio, TX, pro se.
VIJAYA SURAMPUDI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also
represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
LOREN MISHA PREHEIM; CHRISTINA LYNN GREGG, Y. KEN
LEE, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
Case: 21-1885 Document: 20 Page: 1 Filed: 08/12/2022
GONZALEZ v. MCDONOUGH 2


Before NEWMAN, REYNA, and CUNNINGHAM, Circuit
Judges.
NEWMAN, Circuit Judge.
The United States Court of Appeals for Veterans
Claims (“Veterans Court”) affirmed the decision of the
Board of Veterans’ Appeals (“the Board”), denying Vietnam
veteran Daniel Gonzalez’s claim for service connection for
ischemic heart disease (IHD). On finding that Mr.
Gonzalez did not have IHD or any other ailment listed in
the regulation governing presumptive service connection,
the Board and the Veterans Court denied Mr. Gonzalez’s
petition for veterans benefits. Their rulings are in
accordance with law, and are affirmed.
STATUTES AND REGULATIONS
38 U.S.C. § 1110 provides that a veteran shall be
compensated “[f]or disability resulting from personal
injury suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or disease
contracted in line of duty.”
38 C.F.R. § 3.303(c) states that “congenital and
developmental defects, refractive error of the eye,
personality disorders and mental deficiency as such are not
diseases or injuries within the meaning of applicable
legislation.” See Morris v. Shinseki, 678 F.3d 1346, 1353
(Fed. Cir. 2012).
38 U.S.C. § 1116 establishes a presumption of service
connection for certain ailments associated with exposure to
toxic materials such as Agent Orange
, as follows:
38 U.S.C. § 1116 – Presumptions of service
connection for diseases associated with exposure to
certain herbicide agents; presumption of exposure
for veterans who served in the Republic of Vietnam.
Case: 21-1885 Document: 20 Page: 2 Filed: 08/12/2022
GONZALEZ v. MCDONOUGH 3
(a)(1) . . .
(A) a disease specified in paragraph (2) of this
subsection becoming manifest as specified in that
paragraph in a veteran who, during active military,
naval, or air service, served in the Republic of
Vietnam during the period beginning on January
9, 1962, and ending on May 7, 1975; and
(B) each additional disease (if any) that (i) the
Secretary determines in regulations prescribed
under this section warrants a presumption of
service-connection . . .
[the specified disease] shall be considered to have
been incurred in or aggravated by such service,
notwithstanding that there is no record of evidence
of such disease during the period of such service.
In addition to the diseases listed in U.S.C. § 1116(a)(2), VA
regulation 38 C.F.R. § 3.309 specifies other diseases that
are presumed to be service connected due to exposure to
toxic agents such as Agent Orange, which the United
States used for tactical purposes in Vietnam. 38 CFR
§ 3.309(e) specifically lists IHD as a “[d]isease associated
with exposure to certain herbicide agents.” Relevant to
this appeal, a Chiari network condition is not listed
anywhere in 38 C.F.R. § 3.309 or 38 U.S.C. § 1116.
38 C.F.R. § 3.303(c) excludes “congenital or
developmental defects” from “applicable legislation,” and
guides the determination of congenital defects:
(c) Pre-service disabilities noted in service.
There are medical principles so universally
recognized as to constitute fact (clear and
unmistakable proof), and when in accordance with
these principles existence of a disability prior to
service is established, no additional or
confirmatory evidence is necessary. . . . Congenital
Case: 21-1885 Document: 20 Page: 3 Filed: 08/12/2022
GONZALEZ v. MCDONOUGH 4
or developmental defects . . . are not diseases or
injuries within the meaning of applicable
legislation.
This appeal focuses on the determination of congenital
defects, and the statutory treatment of such determination.
BACKGROUND
In January 2011 Mr. Gonzalez filed a claim for
compensation for IHD, drawing on the statutory
presumption of service connection in 38 U.S.C. § 1116. The
VA obtained a medical examination, and the examiner
found that Mr. Gonzalez had a previously undiagnosed
Chiari network condition. During a subsequent
examination in June 2011, another examiner confirmed
that Mr. Gonzalez had a Chiari network condition but
found no evidence of IHD.
Accepting this medical evidence, the VA found that Mr.
Gonzalez did not have IHD. Reg’l Off. Rating Dec. (Dep’t
of Vet. Aff. July 15, 2011) at 2; SAppx34. The VA regional
office denied Mr. Gonzalez’s claim, ruling that he did not
qualify for the statutory presumption of service connection
because a Chiari network condition was not listed in the
statute and regulation.
Mr. Gonzalez appealed to the Board, arguing that the
Chiari network condition met the medical definition of IHD
because the Chiari network contributed to an inadequate
supply of blood and oxygen. The Board obtained another
medical examination, and the examiner confirmed the
Chiari network as located in Mr. Gonzalez’s right atrium,
consisting of “net-like structures near the opening of the
inferior vena cava and coronary sinus.” The examiner
stated that a “Chiari network is a congenital defect” and “is
a congenital structure [that] is not an acquired condition,
unlike ischemic heart disease.” The examiner explained
that the Chiari network “is rarely of clinical significance
Case: 21-1885 Document: 20 Page: 4 Filed: 08/12/2022
GONZALEZ v. MCDONOUGH 5
and seldom diagnosed,” did not develop from exposure to
any substance, and did not cause IHD.
The Board in its opinion distinguished a “defect” from
a “disease” as these terms are used in 38 C.F.R. § 3.303.
The Board explained that a disease could be acquired or
result from conditions during service, whereas a defect is
present independent of service conditions. The medical
opinions reported no evidence to suggest a relation between
Mr. Gonzalez’s Chiari network condition and his IHD.
Although Mr. Gonzalez submitted medical publications
that suggested a link between a Chiari network condition
and IHD, the Board found that service connection was not
shown, and the presumption of service connection was not
applicable to this congenital defect, finding that (“service
connection for the diagnosed Chiari network condition is
not warranted on either a direct or presumptive basis. The
Veterans Health Administration examiner provided expert
opinion that Chiari network is a congenital defect, and
further opined that this defect did not undergo additional
disability as a result of superimposed injury in service.”
The Board applied 38 C.F.R. § 3.303(c), which excludes
“congenital defects” from the presumption of service
connection, and relied on the medical opinions that a
Chiari network is a “defect,” not a “disease.” The Board
denied Mr. Gonzalez’s claim, and he appealed to the
Veterans Court. The Veterans Court found that the
Board’s findings and rulings were not clearly erroneous,
and affirmed that Mr. Gonzalez was not eligible for
presumptive service connection. This appeal followed.
DISCUSSION
The Federal Circuit’s authority to review decisions of
the Veterans Court is governed by 38 U.S.C. § 7292(a).
This statute authorizes our review of a decision “on a rule
of law or of any statute or regulation . . . or any
interpretation thereof . . . that was relied on by the
[Veterans Court] in making the decision.” In Forshey v.
Case: 21-1885 Document: 20 Page: 5 Filed: 08/12/2022
GONZALEZ v. MCDONOUGH 6
Principi, 284 F.3d 1335 (Fed. Cir. 2002) (en banc), this
court elaborated on situations in which § 7292(a) confers
appellate review authority, as follows:
(1) issues concerning the validity of statutes or
regulations on which the decision of the Court of
Appeals for Veterans Claims depended; (2) issues
of interpretation if the Court of Appeals for
Veterans Claims elaborated the meaning of a
statute or regulation and the decision depended on
that interpretation; and (3) issues of validity or
interpretation raised before the Court of Appeals
for Veterans Claims but not decided, if the decision
would have been altered by adopting the position
that was urged.
Id. at 1338 (superseded on other grounds by Veterans
Benefits Act of 2002 Pub. L. No. 107—330 § 402(a) 116
Stat. 2820, 2832 (2002)). Absent a constitutional issue, this
court does not have authority to review decisions that are
based on challenges to a factual determination or to a
regulation as applied to the facts of a particular case. 38
U.S.C. § 7292(d)(2).
The Board, affirmed by the Veterans Court, applied 38
C.F.R. § 3.303(c) and 38 U.S.C. § 1110 and held that the
undisputed congenital nature of the Chiari network
condition precludes the presumption of service connection.
Mr. Gonzalez argues that as a matter of statutory intent,
illustrated by the already far-reaching scope of § 1116, the
regulatory gap for the rare Chiari network condition should
not exclude this condition from the purpose and scope of
§§ 1110 and 1116. He argues that fidelity to the legislative
purpose warrants judicial remedy, to include the Chiari
network condition as a qualifying ailment for presumptive
purposes. Mr. Gonzalez asks this court to take corrective
action in the interest of fairness and in consideration of the
policy of veterans’ preference.
Case: 21-1885 Document: 20 Page: 6 Filed: 08/12/2022
GONZALEZ v. MCDONOUGH 7
The government states that the statute and regulation
are clear, and that neither the VA nor courts have the
authority to depart from the legislated rules. The
government points out that Congress authorized and
contemplated adjustments to § 1110, and in Terry v.
Principi, 340 F.3d 1378 (Fed. Cir. 2003), this court
confirmed the authority of the VA to specify which diseases
qualify for the presumption of service connection. The
record shows that the list is periodically enlarged. In
Terry, the court held that the distinction between “disease”
and “defect” is appropriate in the context of this legislation,
and the court reaffirmed that a defect is not of itself service
connected. Id. at 1386.
Mr. Gonzalez also refers to the “presumption of
soundness” of the veteran on entry into service, as part of
the obligation to favor the veteran. He cites the
administrative and adjudicatory obligation to favor the
veteran in matters of statutory construction and
application. It is noted, however, that the presumption of
soundness is limited to compensation for an injury or
disease contracted or aggravated in the line of duty. See
Terry, 340 F.3d at 1386 (“[W]hen sections 1110 and 1111
are read together, ‘the term defect in section 1111
necessarily means a defect that amounts to or arises from
disease or injury.’”) (quoting Winn v. Brown, 8 Vet. App.
510, 516 (1996))
.
Mr. Gonzalez also presents the constitutional
argument that the Veterans Court and the Board deprived
him of fair and equal treatment, and due process of law.
These arguments are focused on the finding that the Chiari
network condition is not a “disease,” as required by § 1110.
This factual finding is not within our review authority. An
arguably unfair result does not thereby acquire
constitutional dimension. See Helfer v. West, 174 F.3d.
1332, 1335 (Fed. Cir. 1999) (finding that the court does not
have jurisdiction over factual aspects that are
“constitutional in name only”).
Case: 21-1885 Document: 20 Page: 7 Filed: 08/12/2022
GONZALEZ v. MCDONOUGH 8
To the extent Mr. Gonzalez challenges the factual
question of whether the Chiari network condition is a
disease or a defect under 38 C.F.R. § 3.303(c) and 38 U.S.C.
§ 1110, we lack jurisdiction. On the statutory definition of
eligibility for the presumption of service connection, and
the undisputed medical facts, there is no basis for
departing from the decision of the Veterans Court.
CONCLUSION
We conclude that the Veterans Court’s decision is in
accordance with statute, regulation, and precedent. The
decision is affirmed.
AFFIRMED
Each party shall bear its costs.
Case: 21-1885 Document: 20 Page: 8 Filed: 08/12/2022

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