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Winsett v. West

United States Court of Appeals for the Federal Circuit

October 8, 1999


The opinion of the court was delivered by: Per Curiam.

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

Before MICHEL, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and BRYSON, Circuit Judge.

Shelia Winsett appeals from a judgment of the Court of Veterans Appeals (recently renamed the Court of Appeals for Veterans Claims), which affirmed a decision of the Board of Veterans' Appeals denying her request for dependency and indemnity compensation. We affirm.


Gary Jacks served in the U.S. Army from 1969 until 1972. Mr. Jacks's time in the Army included a tour of duty in Vietnam. In 1989 Mr. Jacks received a portion of a settlement fund established in the decree that resolved In re Agent Orange Product Liability Litigation, 597 F. Supp. 740 (E.D.N.Y. 1984), aff'd, 818 F.2d 145 (2d Cir. 1987). Mr. Jacks died later that year. His treating physician, Dr. Brix, completed a death certificate that listed "Agent Orange exposu re" as one of "[o]ther significant conditions . . . contributing to death but not related to cause."

Ms. Winsett filed this action as custodian for Mr. Jacks's minor children, seeking dependency and indemnity compensation. The Veterans Administration determined that the cause of Mr. Jacks's death was respiratory arrest due to grand mal seizures resulting from myocardial infarction. Compensation was not awarded because the Veterans Administration found that the cause of Mr. Jacks's death did not arise until several years after his discharge and therefore was not incurred or aggravated during his military service. Ms. Winsett appealed the negative determination to the Board of Veterans' Appeals, arguing that Agent Orange and other unspecified ailments that Mr. Jacks contracted in Vietnam were significant enough factors in his death to justify compensation for his children.

The Board requested the opinion of a medical expert employed by the Veterans Administration as to the possible relationship between exposure to Agent Orange and Mr. Jacks's death. In making the request, the Board cited 38 U.S.C. § 7109 as the basis for obtaining an advisory medical opinion. The Board notified Ms. Winsett of the request for an advisory medical opinion, stating that on receipt of that opinion Ms. Winsett would "be given 60 days within which to respond." The medical expert, Dr. Nanci McPhail, found no evidence in Mr. Jacks's records to suggest that his death was related to Agent Orange exposure and reported her Conclusions on July 31, 1995. Ms. Winsett responded to and criticized Dr. McPhail's report in September 1995. On October 31, 1995, the Board affirmed the determination that compensation should not be awarded because the cause of Mr. Jacks's death was not incurred or aggravated during service. Ms. Winsett appealed the Board's decision, and the Court of Veterans Appeals affirmed.


Under 38 U.S.C. § 7292, this court may review assertions of error regarding the interpretation of a constitutional, statutory, or regulatory provision, or the validity of a statutory or regulatory provision, when that provision was relied upon by the Court of Appeals for Veterans Claims in its decision. This court may not, however, "review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." 38 U.S.C. § 7292(d)(2). Ms. Winsett argues that her statutory and constitutional challenges give us jurisdiction to consider all the factual issues that she has raised in her appeal. That argument is inconsistent with the statute, which defines our jurisdiction in terms of issues rather than cases. Even though we have jurisdiction to assess the legal points she raises on appeal, we may not address the factual issues she has raised, which go beyond the limits of our jurisdiction as specified by Congress.

Ms. Winsett contends that the Court of Veterans Appeals erred by giving weight to Dr. McPhail's opinion, by giving too little weight to the statement concerning Agent Orange on the death certificate, by not giving weight to a statement by Dr. Brix, and by determining that the cause of Mr. Jacks's death was not exposure to Agent Orange. All of these challenges to the judgment of the Court of Veterans Appeals concern factual determinations and are therefore not within our jurisdiction to review.

Ms. Winsett does raise legal issues that fall within our jurisdiction. First, she contends that the Court of Veterans Appeals misinterpreted 38 U.S.C. § 7109. The court relied on its interpretation of that statute in concluding that the Board properly decided not to seek the opinion of a medical expert outside the Veterans Administration. We begin with the language of 38 U.S.C. § 7109(a), which provides as follows:

When, in the judgment of the Board, expert medical opinion, in addition to that available within the Department, is warranted by the medical complexity or controversy involved in an appeal case, the Board may secure an advisory medical opinion from one or more independent medical experts who are not employees of the Department.

Ms. Winsett interprets that language to require the Board to seek an outside opinion when it sends a request for an internal opinion and indicates that the request is pursuant to 38 U.S.C. § 7109. We agree with the Court of Veterans Appeals that the statute does not create such a requirement. Even if a written reference to the provision is read as a binding indication that expert medical opinion was warranted in the Board's judgment, the statute still only allows, rather than requires, the Board to secure an outside opinion. The provision sets forth no circumstances under which such action by the Board is mandatory.

Ms. Winsett also argues that the Board's failure to procure an outside medical opinion violated VHA Directive 10-94-040 (issued April 17, 1995). That directive, however, only comments on the inadvisability of the Board's use of its own staff physicians. In this case the Board requested an opinion from a Veterans Administration physician, not one of its own staff physicians. The Board's actions in this case were completely consistent with the directive.

Ms. Winsett's final legal argument is that she was denied due process when the Board issued its decision less than 60 days after she received notice of Dr. McPhail's opinion. The Board's action, she contends, violated the Board's representation that she would be given 60 days to respond to the opinion. The Board, however, did not issue a decision until after Ms. Winsett had responded to Dr. McPhail's report, and Ms. Winsett did not indicate at the time she responded that a further submission would be forthcoming. We conclude that the Board did not violate its representations to Ms. Winsett. Once the Board received a response from her that was to all indications final, it properly proceeded to decide the case. Because the Board did not cut short the response time it had promised Ms. Winsett, it did not violate its representation to her and thus did not deny her due process.


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