Veteranclaims’s Blog

July 17, 2020

FedCir; Simmons v. Wilkie, No. 2019-1519(Decided: July 17, 2020); failure to apply the presumptions of soundness and service connection is not per se prejudicial; 38 U.S.C. § 1111; Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); 38 U.S.C. § 105(a); Neither the presumption of soundness nor the presumption of service connection, however, is relevant to the third requirement, in which the veteran must show that the in-service injury or disease is causally related to the veteran’s current disability. Holton, 557 F.3d at 1367;

United States Court of Appeals
for the Federal Circuit

RICHARD D. SIMMONS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee


2019-1519


Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-3039, Chief Judge Margaret C.
Bartley, Judge Michael P. Allen, Senior Judge Robert N.
Davis.


Decided: July 17, 2020


KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
ASHLEY AKERS, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
ETHAN P. DAVIS, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR., BARBARA E. THOMAS; JONATHAN KRISCH,
Y. KEN LEE, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
Case: 19-1519 Document: 36 Page: 1 Filed: 07/17/2020
2 SIMMONS v. WILKIE


Before MOORE, CLEVENGER, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
Richard D. Simmons appeals a decision from the U.S.
Court of Appeals for Veterans Claims (Veterans Court), affirming
the decision of the Board of Veterans’ Appeals
(Board) denying Mr. Simmons’s claim for compensation for
a service-connected psychiatric disorder. The Veterans
Court held that, even though the Board incorrectly stated
that the presumptions of soundness and service connection
did not apply to Mr. Simmons’s claim, that error was harmless
because it did not affect the basis of the Board’s denial
of the claim. On appeal, Mr. Simmons argues that a failure
to apply an evidentiary presumption is per se prejudicial.
Because we agree with the Veterans Court that the failure
to apply the presumptions of soundness and service connection
is not per se prejudicial
, we affirm.
BACKGROUND
We begin by discussing the pertinent background law.
I. Presumptions of Soundness and Service Connection
Veterans are entitled to compensation from the Department
of Veterans Affairs (VA) if they develop a 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 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service).
To establish a right to disability benefits, a veteran
must show: “(1) the existence of a present disability; (2) inservice
incurrence or aggravation of a disease or injury;
and (3) a causal relationship between the present disability
and the disease or injury incurred or aggravated during
service.” Shedden v. Principi, 381 F.3d 1163, 1166–67
(Fed. Cir. 2004).
Case: 19-1519 Document: 36 Page: 2 Filed: 07/17/2020
SIMMONS v. WILKIE 3
As to the second requirement, whether a disability was
incurred or aggravated during service, Congress provided
for a special evidentiary rule known as the presumption of
soundness, set forth in 38 U.S.C. § 1111 (wartime service):
For the purposes of section 1110 of this title, every
veteran shall be taken to have been in sound condition
when examined, accepted, and enrolled for
service, except as to defects, infirmities, or disorders
noted at the time of the examination, acceptance,
and enrollment, or where clear and
unmistakable evidence demonstrates that the injury
or disease existed before acceptance and enrollment
and was not aggravated by such service.
See also 38 U.S.C. § 1132 (peacetime service). When no
preexisting disorder is noted in the veteran’s paperwork
upon entry into service, any medical problem arising during
service is presumed to have occurred during service.
Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009).
Another statutory presumption relevant to the second
requirement is set forth in 38 U.S.C. § 105(a), which creates
a presumption that an injury or disease incurred by a
veteran during active service was incurred in the line of
duty and not caused by any veteran misconduct. 38 U.S.C.
§ 105(a) states:
[a]n injury or disease incurred during active military,
naval, or air service will be deemed to have
been incurred in line of duty and not the result of
the veterans own misconduct when the person on
whose account benefits are claimed was, at the
time the injury was suffered or disease contracted,
in active military, naval, or air service, whether on
active duty or on authorized leave, unless such injury
or disease was a result of the persons own willful
misconduct or abuse of alcohol or drugs.
Case: 19-1519 Document: 36 Page: 3 Filed: 07/17/2020
4 SIMMONS v. WILKIE
Neither the presumption of soundness nor the presumption
of service connection, however, is relevant to the third requirement,
in which the veteran must show that the in-service
injury or disease is causally related to the veteran’s
current disability. Holton, 557 F.3d at 1367
.
II. Mr. Simmons
Mr. Simmons served in the U.S. Navy from 1968 to
January 1970. Throughout his time in service, Mr. Simmons
experienced feelings of depression and homesickness.
In April 1969, a VA physician diagnosed Mr. Simmons with
a laceration of the left wrist and situational depression but
no permanent disability. In December 1969, another VA
physician diagnosed him with immature personality disorder
and recommended he be discharged. Mr. Simmons was
discharged the next month.
On September 13, 1972, Mr. Simmons submitted a
claim for a non-service-connected pension for polyarthritis.
In December 1972, the VA awarded Mr. Simmons the requested
non-service-connected pension and rated the polyarthritis
claim as similar to rheumatoid arthritis. In June
1974, Mr. Simmons submitted a claim for additional compensation,
asserting that his arthritis was service connected
and that he also had a nervous condition that
justified compensation. J.A. 49. The VA conducted a medical
examination, at which Mr. Simmons complained of severe
joint pain and nervousness. The VA diagnosed
Mr. Simmons with arthritis and a nervous condition with
depressive features as a result of said arthritis. J.A. 50. In
September 1974, the VA regional office (RO) denied
Mr. Simmons’s claim for service connection for arthritis
and a nervous condition with depressive features; the VA
found no evidence that the arthritis stemmed from
Mr. Simmons’s service and that his nervous condition was
a by-product of his non-service-connected arthritis and not
causally related to any of his diagnoses in service. J.A. 49.
Case: 19-1519 Document: 36 Page: 4 Filed: 07/17/2020
SIMMONS v. WILKIE 5
Because Mr. Simmons never perfected an appeal to the
Board, the RO’s decision became final.
Over the subsequent years, Mr. Simmons at various
points sought to re-open his claims for arthritis and a nervous
condition, which the VA denied each time. On December
21, 2005, after having received a total disability rating
for an unrelated asbestosis-based claim, Mr. Simmons filed
a claim that there was clear and unmistakable error (CUE)
in the RO’s 1974 rating decision, but only with respect to
the denial of service connection for his nervous condition.
There, he argued that if the VA had considered the presumptions
of soundness and service connection set forth in
38 U.S.C. §§ 105(a) and 1111, respectively, he would have
been awarded disability compensation for his nervous condition.
In 2016, the Board denied Mr. Simmons’s request for
revision of the RO’s 1974 decision because it was not a
product of CUE, finding instead that Mr. Simmons’s current
psychiatric disorder was due to his non-service-connected
arthritis and not related to any mental health
condition suffered in service. Moreover, the Board found
that the presumptions of service and soundness in
38 U.S.C. §§ 105(a) and 1111 did not apply.
Mr. Simmons appealed the Board’s failure to apply the
two presumptions to the Veterans Court. In September
2018, the Veterans Court affirmed the Board’s decision and
found that although the Board erred in analyzing the two
statutory presumptions when it found no CUE in the RO’s
1974 decision, that error was harmless because Mr. Simmons’s
current disability was not causally related to his inservice
condition. Simmons v. Wilkie, 30 Vet. App. 267
(2018). The Veterans Court explained that, under
38 U.S.C. § 7261(b)(2), it is “statutorily required to consider
whether those errors prejudiced him.” Id. at 2770. It
then ruled that the error in this case “is not an inherently
Case: 19-1519 Document: 36 Page: 5 Filed: 07/17/2020
6 SIMMONS v. WILKIE
prejudicial error, although it may nevertheless be prejudicial
in a particular case.” Id. at 283.
Mr. Simmons timely appealed to our court in January

  1. We have jurisdiction pursuant to 38 U.S.C. § 7292(c).
    DISCUSSION
    We review legal determinations of the Veterans Court
    de novo. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir.
    1991).
    As previously mentioned, the Veterans Court determined
    that the Board’s failure to apply the two presumptions,
    although incorrect, was harmless because
    Mr. Simmons failed to prove the third requirement necessary
    for the receipt of benefits—the so-called “nexus” requirement.
    See Holton, 557 F.3d at 1366. Mr. Simmons
    asks us to overturn the Veterans Court’s decision and apply
    a per se rule of prejudice when either the RO or the
    Board fails to apply the two presumptions. For the reasons
    that follow, we decline to adopt such a rigid, categorical
    rule.
    The Supreme Court’s analysis in Shinseki v. Sanders
    guides our ruling in this instance. 556 U.S. 396 (2009). In
    Sanders, the Supreme Court rejected as not “consistent
    with the statutory demand” this court’s prior rule of a presumption
    of prejudice whenever the VA failed to provide a
    claimant the notice required by 38 U.S.C. § 5103(a). Id. at
  2. Instead, under 38 U.S.C. § 7261(b)(2), the Veterans
    Court must “take due account of the rule of prejudicial error,”
    which “requires the Veterans Court to apply the same
    kind of harmless-error rule that courts ordinarily apply in
    civil cases.” Id. (internal quotations omitted).
    In rejecting a per se presumption of prejudice, the Supreme
    Court explained that this court’s per se rule “differ[
    ed] significantly from the approach courts normally
    take in ordinary civil cases” in three ways. Id. at 407.
    First, such a rule would require the reviewing court to find
    Case: 19-1519 Document: 36 Page: 6 Filed: 07/17/2020
    SIMMONS v. WILKIE 7
    prejudice even if that court conscientiously determined
    that the error had not affected the outcome. Id. Second,
    the rule placed “an unreasonable evidentiary burden upon
    the VA.” Id. at 408–09. Third, a rigid rule requiring the
    VA to explain why the error is harmless would conflict with
    Supreme Court precedent placing the burden of establishing
    prejudice on the party that seeks to have a judgment
    set aside. Id. at 409–10. Thus, when determining whether
    an error affected the outcome of the case or was harmless,
    the Court has “warned against courts’ determining
    whether an error is harmless through the use of mandatory
    presumptions and rigid rules rather than case-specific applications
    of judgment, based upon examination of the record.”
    Id. at 407.
    Mr. Simmons’s proposed rigid, per se rule is clearly
    foreclosed by § 7261(b)(2) and the reasoning in Sanders.
    Contrary to Mr. Simmons’s view, nothing in Sanders’s disapproval
    of per se rules for harmless error analysis suggests
    that it is constrained to the context of “notice errors.”
    Likewise, § 7261(b)(2)’s mandate for the Veterans Court to
    “take due account of the rule of prejudicial error” applies to
    all cases under the jurisdiction of the Veterans Court and
    is not limited to notice errors. Mr. Simmons’s proposed
    rule also presents the same three problems the Supreme
    Court identified in Sanders. We therefore hold that a per
    se rule of prejudice is not appropriate here, for the same
    reasons that it was not appropriate in Sanders.
    Such a per se rule of prejudice when the RO or Board
    fails to apply the two presumptions also would be inconsistent
    with our case law. We have held that the presumptions
    of soundness and service connection are not relevant
    to the third requirement for establishing entitlement to
    disability benefits—the nexus requirement. Dye v. Mansfield,
    504 F.3d 1289, 1292 (Fed. Cir. 2007) (stating that the
    presumption of soundness cannot fill the gap where the
    veteran failed to show a causal relationship between his inservice
    and post-service medical problems); Holton, 557
    Case: 19-1519 Document: 36 Page: 7 Filed: 07/17/2020
    8 SIMMONS v. WILKIE
    F.3d at 1367 (holding that neither the presumption of
    soundness nor service connection are relevant to the question
    of whether the in-service injury or disease is causally
    related to the veteran’s current disability). A per se rule of
    prejudice for failure to apply the two presumptions—which
    are relevant to the second requirement and not the third,
    nexus requirement—would also undo any proper VA finding
    that the claimant had failed to establish a causal nexus.
    Such an expansion of the effect of these two statutory presumptions
    would be inconsistent with Dye and Holton.
    Accordingly, we decline to alter the Veterans Court’s
    harmless error framework by adding a per se rule of prejudice
    with respect to the presumptions of soundness and service
    connection. Instead, as the Supreme Court has
    instructed, the Veterans Court should apply the “same
    kind of harmless-error rule that courts ordinarily apply in
    civil cases.” Sanders, 556 U.S. at 406 (internal quotations
    omitted). Because that is the rule that the Veterans Court
    applied here when it evaluated whether Mr. Simmons had
    been prejudiced by the Board’s failure to apply the two presumptions
    in light of the facts and circumstances of the
    particular case, the Veterans Court correctly followed
    § 7261(b)(2).
    CONCLUSION
    We have considered Mr. Simmons’s remaining arguments
    and find them unpersuasive. Accordingly, the appeal
    from the final judgment of the Veterans Court is
    AFFIRMED
    COSTS
    No costs.
    Case: 19-1519 Document: 36 Page: 8 Filed: 07/17/2020

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