Veteranclaims’s Blog

May 12, 2011

Applicability of Amended CFR 3.309(e) to Cases before Veterans Court

Filed under: Uncategorized — Tags: — veteranclaims @ 2:29 pm

Excerpts from Order below:

“In light of this Court’s decision in Ervin, the Secretary’s position before the Federal Circuit in Kakuk, and the undisputed facts of Mr. Tyrrell’s case, the Court will order the parties to submit, within 15 days after the date of this order, a memorandum of law, not to exceed 5 pages, regarding the applicability of Ervin to amended § 3.309(e) and the effect of the Secretary’s stated position in Kakuk on the facts of this case.
Upon consideration of the foregoing, it is ORDERED that the parties submit, within 15 days after the date of this order, memoranda of law as described above.”

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“The Court also notes that, before the United States Court of Appeals for the Federal Circuit (Federal Circuit), the Secretary filed a motion for vacatur and remand of this Court’s decision in Kakuk v. Shinseki, No. 07-1126 (Vet. App. 2009), on the basis that amended § 3.309(e)”may provide Mr. Kakuk with the nexus currently lacking between his disability and his military service.” Kakuk v. Shinseki, No. 2010-7023, 2011 U.S. App. Lexis 2594, at *2 (Fed. Cir. Feb. 9, 2011). Mr. Kakuk’s appeal was pending before the Federal Circuit at the time amended § 3.309(e) became effective. The Federal Circuit granted the Secretary’s motion.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3513
HOWARD J. TYRRELL,
V.
APPELLANT,
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
APPELLEE.

Before KASOLD, Chief Judge, and HAGEL, and SCHOELEN, Judges.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

Howard J. Tyrrell appeals through counsel a July 16, 2009,decision of the Board
of Veterans’ Appeals (Board)that denied entitlement to VA benefits for hypertension
and coronary artery disease, to include as secondary to service-connected diabetes mellitus.1
While Mr. Tyrrell’s appeal was pending before the Court, the Secretary amended 38 C.F.R. § 3.309(e) to include coronary artery disease on the list of diseases presumptively caused by exposure to herbicides. Although the Secretary’s statement of the new regulation’s applicability states that the amended regulation is applicable to cases pending before VA on August 31, 2010, it makes no mention of the amended regulation’s applicability to cases pending before the Court on that
date. 75 Fed. Reg. 53202 (Aug. 31, 2010).
The Court recently addressed the question of the applicability of amended
regulation 38 C.F.R. § 3.304(f) to cases pending before the Court at the time the
regulation became effective and determined, based on a number of factors, that the amended regulation was, in fact, applicable. Ervin v. Shinseki, ___ Vet.App. ___, ___ (2011), 2011 WL 835470.
The Board also denied entitlement to service connection for two additional
disabilities, including as secondary to service-connected diabetes mellitus. Because Mr. Tyrrell does not challenge the Board’s denial of these claims in his
brief, the Court deems any appeal with respect to these claims abandoned.
See Grivois v. Brown, 6 Vet.App. 136, 138(1994) (holding that issues or claims not argued on appeal are considered abandoned).
1

The Court notes that the Secretary’s statement in the Federal Register regarding the applicability of amended § 3.304(f) to pending cases is substantially similar to that regarding the applicability of amended § 3.309(3). The Court also notes that, before the United States Court of Appeals for the Federal Circuit (Federal Circuit), the Secretary filed a motion for vacatur and remand of this Court’s decision in Kakuk v. Shinseki, No. 07-1126 (Vet. App. 2009), on the basis that amended § 3.309(e)”may provide Mr. Kakuk with the nexus currently lacking between his disability and his military service.” Kakuk v. Shinseki, No. 2010-7023, 2011 U.S. App. Lexis 2594, at *2 (Fed. Cir. Feb. 9, 2011). Mr. Kakuk’s appeal was pending before the Federal Circuit at the time amended § 3.309(e) became effective. The Federal Circuit granted the Secretary’s motion.
There is no question that Mr. Tyrrell served in Viet Nam and is therefore
presumed to have been exposed to herbicides. See 38 C.F.R. § 3.307(a)(6) (2010). There is also no question that he currently suffers from coronary artery disease.
In light of this Court’s decision in Ervin, the Secretary’s position before the Federal Circuit in Kakuk, and the undisputed facts of Mr. Tyrrell’s case, the Court will order the parties to submit, within 15 days after the date of this order, a memorandum of law, not to exceed 5 pages, regarding the applicability of Ervin to amended § 3.309(e) and the effect of the Secretary’s stated position in Kakuk on the facts of this case.
Upon consideration of the foregoing, it is ORDERED that the parties submit, within 15 days after the date of this order, memoranda of law as described above.
DATED: May 2, 2011

Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
PER CURIAM
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