Veteranclaims’s Blog

October 21, 2021

Single Judge Application; service trauma; The Federal Circuit Court defines “service trauma” as “an injury or wound produced by an external physical force during the service member’s performance of military duties.” Nielson v. Shinseki, 23 Vet. App. 56, 60 (2009);

Filed under: Uncategorized — Tags: — veteranclaims @ 5:36 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-3435
DENNIS ALGARIN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
GREENBERG, Judge: U.S. Marine Corp veteran Dennis Algarin pro se appeals a January
29, 2020, Board of Veterans’ Appeals decision that denied service connection for a dental disability
for compensation purposes.1 Record (R.) at 5-10. The appellant argues that (1) VA failed to obtain
all of his relevant medical records; and (2) the Board failed to provide an adequate statement of
reasons or bases. Appellant’s Informal Brief at 1-6. For the following reasons, the Court will set
aside the January 2020 Board decision and remand the matter for readjudication.
I.
The Veterans Administration was established in 1930 when Congress consolidated the
Bureau of Pensions, the National Home for Disabled Volunteer Soldiers, and the U.S. Veterans’
Bureau into one agency. Act of July 3, 1930, ch. 863, 46 Stat. 1016. This Court was created with
the enactment of the Veterans’ Judicial Review Act (VJRA) in 1988. See Pub. L. No. 100-687, §
402, 102 Stat. 4105, 4122 (1988). Before the VJRA, for nearly 60 years VA rules, regulations,
1 The Board also referred a claim for entitlement to service connection for a dental disability for the purpose
of eligibility for outpatient dental treatment. This matter is not currently before the Court. See Hampton v. Gober, 10
Vet.App. 481, 482 (1997).
2
and decisions lived in “splendid isolation,” generally unconstrained by judicial review. See Brown
v. Gardner, 513 U.S. 115, 122 (1994) (Souter, J.).
Yet, the creation of a special court solely for veterans is consistent with congressional intent
as old as the Republic. Congress first sought judicial assistance in affording veterans relief when
it adopted the Invalid Pensions Act of 1792, which provided “for the settlement of the claims of
widows and orphans . . . and to regulate the claims to invalid pensions,” for those injured during
the Revolutionary War. Act of Mar. 23, 1792, ch. 11, 1 U.S. Stat. 243 (1792) (repealed in part and
amended by Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793)). The act, though magnanimous,
curtailed the power of the judiciary, by providing the Secretary of War the ability to withhold
favorable determinations to claimants by circuit courts if the Secretary believed that the circuit
court had erred in favor of the soldier based on “suspected imposition or mistake.” See id.
Chief Justice John Jay2 wrote a letter3 to President George Washington on behalf of the
Circuit Court for the District of New York4 acknowledging that “the objects of this act are
exceedingly benevolent, and do real honor to the humanity and justice of Congress.” See
Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792). Jay also noted that “judges
desire to manifest, on all proper occasions and in every proper manner their high respect for the
national legislature.” Id.
2 John Jay served as the first Secretary of State of the United States on an interim basis. II DAVID G. SAVAGE,
GUIDE TO THE U.S. SUPREME COURT 872 (4th ed. (2004)). Although a large contributor to early U.S. foreign policy,
Jay turned down the opportunity to assume this position full time. Id. at 872, 916. Instead, he accepted a nomination
from President Washington to become the first Chief Justice of the Supreme Court on the day the position was created
by the Judiciary Act of 1789. Id. Jay resigned his position in 1795 to become the second Governor of New York. Id.
He was nominated to become Chief Justice of the Supreme Court again in December 1800, but he declined the
appointment. Id.
3 The Supreme Court never decided Hayburn’s Case. See 2 U.S. (2 Dall.) 409, 409 (1792). The case was
held over under advisement until the Court’s next session and Congress adopted the Invalid Pensions Act of 1793,
which required the Secretary of War, in conjunction with the Attorney General, to “take such measures as may be
necessary to obtain an adjudication of the Supreme Court of the United States.” Act of Feb. 28, 1793, ch. 17, 1 Stat.
324 (1793). Hayburn’s Case has often been cited as an example of judicial restraint, see, e.g., Tutun v. United States,
270 U.S. 568 (1926), but Supreme Court historian Maeva Marcus has argued persuasively to the contrary. See Maeva
Marcus & Robert Teir, Hayburn’s Case: A Misinterpretation of Precedent, 1988 WIS. L. REV. 527. After all, Jay’s
letter included by Dallas, the Court Reporter, in a note accompanying the decision to hold the matter under advisement,
is nothing more than an advisory opinion that compelled Congress to change the law in order to make the judiciary
the final voice on the review of a Revolutionary War veteran’s right to pension benefits. See Hayburn’s Case, 2 U.S.
(2 Dall.) 409, 410 n.
4 At this time, each Justice of the Supreme Court also served on circuit courts, a practice known as circuit
riding. See RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL
SYSTEM (7th ed. 2015).
3
This desire to effect congressional intent favorable to veterans has echoed throughout the
Supreme Court’s decisions on matters that emanated from our Court. See Shinseki v. Sanders, 556
U.S. 396, 416, 129 S. Ct. 1696, 1709 (2009) (Souter, J., dissenting) (“Given Congress’s
understandable decision to place a thumb on the scale in the veteran’s favor in the course of
administrative and judicial review of VA decisions”); see also Henderson v. Shinseki, 562 U.S.
428, 440, 131 S. Ct. 1197, 1205 (2011) (declaring that congressional solicitude for veterans is
plainly reflected in “the singular characteristics of the review scheme that Congress created for the
adjudication of veterans’ benefits claims,” and emphasizing that the provision “was enacted as part
of the VJRA [because] that legislation was decidedly favorable to the veteran”).
II.
Justice Alito5 observed in Henderson v. Shinseki that our Court’s scope of review is “similar
to that of an Article III court reviewing agency action under the Administrative Procedure Act,
5 U.S.C. § 706.” 562 U.S. at 432 n.2 (2011); see 38 U.S.C. § 7261. “The Court may hear cases
by judges sitting alone or in panels, as determined pursuant to procedures established by the
Court.” 38 U.S.C. § 7254. The statutory command that a single judge 6 may issue a binding
decision is “unambiguous, unequivocal, and unlimited,” see Conroy v. Aniskoff, 507 U.S. 511, 514
(1993). The Court’s practice of treating panel decisions as “precedential” is unnecessary,
particularly since the Court’s adoption of class action litigation. See Wolfe v. Wilkie, 32 Vet.App.
1 (2019). We cite decisions from our Court merely for their guidance and persuasive value.
5 Justice Alito was born in Trenton, New Jersey. SUPREME COURT OF THE UNITED STATES,
https://www.supremecourt.gov/about/biographies.aspx (last visited Mar. 4, 2020). He began his career as a law clerk,
then became assistant U.S. attorney for the district of New Jersey before assuming multiple positions at the Department
of Justice. Id. He then became a U.S. attorney for the district of New Jersey. Id. Before his nomination for the
Supreme Court, he spent 16 years as a judge on the U.S. Court of Appeals for the Third Circuit. Id. In 2005, President
George W. Bush chose Alito to replace retiring Supreme Court Justice Sandra Day O’Connor. Id.
6 From 1989 to 1993, West (the publisher of this Court’s decisions) published this Court’s single-judge
decisions in tables in hard-bound volumes of West’s Veterans Appeals Reporter. Since 1993, West has published this
Court’s single-judge decisions electronically only. I believe the Court should publish all its decisions in print form.
See, e.g., Passaic Cty. Bar Ass’n v. Hughes, 401 U.S. 1003 (1971).
4
III.
The appellant served on active duty in the U.S. Marine Corps from March 1970 to October
1970 as a basic aircraft maintenance marine. R. at 433 (DD Form 214). The appellant was awarded
a National Defense Service Medal and a Marksman Shooting Badge for his service. Id.
A March 1970 “Report of Medical History” noted that the appellant did not have any
“severe tooth or gum trouble” or other dental issues upon his enlistment into service. R. at 384-85.
The appellant then received dental treatment in April 1970 and May 1970. R. at 396-97. An
October 1970 “Report of Medical Examination” noted that at separation from service, the
appellant’s “mouth and throat” were “normal,” but he was missing eight teeth. R. at 382-83.
IV.
An August 1997 VA treatment record listed the appellant as having a “normal” mouth and
throat. R. at 252.
In January 2018, the appellant applied for disability benefits seeking service connection
for a dental disability, R. at 427-30, alleging that he had suffered an injury in service, R. at 428,
and had received treatment at the San Juan VA medical center (VAMC) from 1970 to the present.
R. at 410.
In August 2018, the regional office (RO) denied service connection for a dental condition.
R. at 181-83. The appellant appealed. R. at 175.
V.
In January 2020, the Board denied service connection for a dental disability for
compensation purposes. R. at 5-10. The Board acknowledged the appellant’s lay statements and
his request “that the VA help him in whatever way they can to restore the five or six teeth that
were removed while in service as this would make it easier for him to eat.” R. at 7.
The Board then stated:
While the Board finds the Veteran competent and credible to report losing teeth
after having them extracted in boot camp, the Veteran is not competent to determine
whether his loss of teeth was due to loss of substance of body of maxilla or mandible
due to trauma or disease. The Federal Circuit Court defines “service trauma” as “an injury or wound produced by an external physical force during the service member’s performance of military duties.” Nielson v. Shinseki, 23 Vet. App. 56, 60 (2009);
see also VAOPGCPREC 5-97. VA’s General Counsel held that dental treatment of
5
teeth, even extractions, during service do not constitute dental trauma. See
VAOPGCPREC 5-97. The Board finds the Veteran losing teeth after having them
extracted in boot camp does not amount to dental trauma. There is no competent
evidence to suggest that the Veteran’s dental disability was due to loss of substance
of body of maxilla or mandible due to in-service trauma or disease.
R. at 9.
VI.
“Each decision of the Board shall include . . . a written statement of the Board’s findings
and conclusions, and the reasons or bases for those findings and conclusions, on all material issues
of fact and law presented in the record.” 38 U.S.C. § 7104(d)(1). This statement of reasons or
bases serves not only to help a claimant understand what has been decided, but also to ensure that
VA decisionmakers do not exercise “naked and arbitrary power” in deciding entitlement to
disability benefits. See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.).
VII.
The Court concludes that the Board provided an inadequate statement of reasons or bases
for denying service connection for a dental disability for compensation purposes. 38 U.S.C. §
7104(d)(1). The appellant’s application for disability benefits sought service connection for a
“dental condition due to injury in active service.” R. at 428. The Board ignored the appellant’s
contention and instead treated the appellant’s dental disability claim as if he were merely seeking
compensation for in-service teeth extraction. See R. at 9. Remand is required for the Board to
adequately address the appellant’s theory of service connection. On remand, the Board is reminded
that there is no entrance examination report of record and upon enlistment the appellant expressly
denied “severe tooth or gum trouble.” R. at 384-85.
Because the Court is remanding the appellant’s claim, it will not address his remaining
arguments. See Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, the appellant may
present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi,
16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment. See 38 U.S.C.
§ 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.) at 410, n. (“[M]any unfortunate and meritorious
[veterans], whom Congress have justly thought proper objects of immediate relief, may suffer
great distress, even by a short delay, and may be utterly ruined, by a long one.”).
6
VIII.
For the foregoing reasons, the January 29, 2020, Board decision is SET ASIDE and the
matter is REMANDED for readjudication.
DATED: April 30, 2021
Copies to:
Dennis Algarin
VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.