Veteranclaims’s Blog

January 19, 2022

FedCir Application; 38 C.F.R. § 3.312(c)(3); Robinson, 557 F.3d at 1361 (“Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory.”);

NOTE: This disposition is nonprecedential.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


LOURDESUE SMITH MONTANEZ,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-1045


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-4136, Judge Joseph L. Falvey,
Jr.


Decided: January 19, 2022


JOHN D. NILES, Carpenter Chartered, Topeka, KS, argued
for claimant-appellant. Also represented by
KENNETH DOJAQUEZ.
STEPHANIE FLEMING, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
ELIZABETH MARIE HOSFORD; BRIAN D. GRIFFIN, SAMANTHA
Case: 21-1045 Document: 40 Page: 1 Filed: 01/19/2022
SMITH 2 MONTANEZ v. MCDONOUGH
ANN SYVERSON, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.


Before MOORE, Chief Judge, PROST and TARANTO, Circuit
Judges.
TARANTO, Circuit Judge.
Lourdesue Smith-Montanez sought dependency and
indemnity compensation (DIC) benefits from the Department
of Veterans Affairs (VA) under 38 U.S.C. § 1310 after
the death of her husband, a veteran. The death certificate
listed acute respiratory distress syndrome, septic shock
with multi-organ failure, and renal failure as the causes of
death, but at the time of death, and for many years before
that, the veteran was receiving disability benefits from VA
based on a 10% disability rating for service-connected hypertension.
In the proceedings leading to this appeal, the
issue arose whether the hypertension was a contributory
cause of the veteran’s death. See 38 C.F.R. § 3.5 (DIC benefits
tied to “service-connected death” of veteran); id.
§ 3.312(a) (“The death of a veteran will be considered as
having been due to a service-connected disability when the
evidence establishes that such disability was either the
principal or a contributory cause of death.”).
The Board of Veterans’ Appeals, in agreement with the
relevant VA regional office, denied Mrs. Smith-Montanez’s
claim for DIC benefits. As relevant here, the Board recited
the regulatory standard requiring that a “contributory
cause” of a death have “contributed substantially or materially”
to the death. Id. § 3.312(c)(1); see J.A. 25. The Board
then found: “The most probative evidence of record does not
show that hypertension contributed substantially or materially
to cause the Veteran’s death.” J.A. 26–27.
On appeal to the Court of Appeals for Veterans Claims
(Veterans Court), Mrs. Smith-Montanez, for the first time
Case: 21-1045 Document: 40 Page: 2 Filed: 01/19/2022
SMITH MONTANEZ v. MCDONOUGH 3
represented by counsel, invoked 38 C.F.R. § 3.312(c)(3),
which provides:
(3) Service-connected diseases or injuries involving
active processes affecting vital organs should receive
careful consideration as a contributory cause
of death, the primary cause being unrelated, from
the viewpoint of whether there were resulting debilitating
effects and general impairment of health
to an extent that would render the person materially
less capable of resisting the effects of other disease
or injury primarily causing death. Where the
service-connected condition affects vital organs as
distinguished from muscular or skeletal functions
and is evaluated as 100 percent disabling, debilitation
may be assumed.
Mrs. Smith-Montanez argued that the Board had erred in
not addressing the first sentence of that regulatory provision
in considering the veteran’s hypertension (which was
not rated 100% disabling, as would be required for the second
sentence to apply). The Veterans Court rejected the
argument.
Of crucial importance, the Veterans Court concluded
that “nothing in Ms. Smith-Montanez’s statements before
VA or the record, nor hypertension itself, suggests that the
veteran’s hypertension affected any of his vital organs that
resulted in debilitating effects and general health impairment
that rendered him materially less capable of resisting
the primary causes of his death (i.e., acute respiratory distress
syndrome, septic shock with multi-organ failure, and
renal failure).” Smith-Montanez v. Wilkie, No. 19-4136,
2020 WL 3496373, at *3 (Vet. App. June 29, 2020). That
conclusion reflects the familiar standard governing the
Board’s duty to address issues that are raised either by the
claimant or by the evidence of record itself. See Robinson
v. Shinseki, 557 F.3d 1355, 1361–62 (Fed. Cir. 2009), aff’g
Robinson v. Peake, 21 Vet. App. 545, 552–56 (2008).
Case: 21-1045 Document: 40 Page: 3 Filed: 01/19/2022
SMITH 4 MONTANEZ v. MCDONOUGH
Because Mrs. Smith-Montanez undisputedly did not invoke
§ 3.312(c)(3) to the Board, the pertinent part of the
Veterans Court’s conclusion is that the record itself did not
sufficiently support a theory of recovery under § 3.312(c)(3)
to trigger a Board duty to raise the theory on its own.
Mrs. Smith-Montanez timely appeals. We have limited
jurisdiction under 38 U.S.C. § 7292. As relevant here, we
may review the Veterans Court’s interpretation of a regulation
or other rule of law, but we may not review a factual
determination. Id. § 7292(d)(1). We affirm.
We need to consider only one legal question. We do not
need to decide whether the Veterans Court legally erred to
the extent its opinion suggests that the veteran’s hypertension
here required no careful consideration because it was
not an active process affecting a vital organ—without regard
to whether, under the second half of the regulatory
sentence, the condition “result[ed in] debilitating effects
and general impairment of health to an extent that would
render the person materially less capable of resisting the
effects of other disease or injury primarily causing death.”
38 C.F.R. § 3.312(c)(3). If the Veterans Court so concluded
at all, it did not rest its decision only on such a conclusion.
Rather, the Veterans Court separately concluded that the
record did not raise an issue under the second half of the
regulation’s sentence. Smith-Montanez, 2020 WL 3496373,
at *3–4. In doing so, the Veterans Court relied on an implicit
legal premise that application of the Robinson standard
permits consideration of that portion of the regulation’s
sentence. We have jurisdiction to review that legal premise,
as Mrs. Smith-Montanez asks us to do.
We see no legal error in the Veterans Court’s premise.
The regulation states that certain service-connected diseases
or injuries warrant careful consideration from a particular
viewpoint, namely, whether they have the defined
property relating to weakening of resistance to the effects
of the primary cause of death. The question whether the
Case: 21-1045 Document: 40 Page: 4 Filed: 01/19/2022
SMITH MONTANEZ v. MCDONOUGH 5
record provides no indication that the asserted contributory
cause has that property is a proper part of the Robinson
inquiry into whether the record provides support for
the recovery theory authorized by § 3.312(c)(3). See 557
F.3d at 1361 (“Where a fully developed record is presented
to the Board with no evidentiary support for a particular
theory of recovery, there is no reason for the Board to address
or consider such a theory.”).

That conclusion brings our review to an end. The Veterans
Court applied the full regulatory sentence and determined
that there was no sufficient evidence in this case to
trigger the Robinson duty. That ruling is a determination
of “a factual matter” that is “beyond our jurisdiction to review.”
Id. at 1362.
For those reasons, we affirm the decision of the Veterans
Court.
The parties shall bear their own costs.
AFFIRMED
Case: 21-1045 Document: 40 Page: 5 Filed: 01/19/2022

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