United States Court of Appeals for the Federal Circuit
October 21, 1999
IVAN C. SIEWERT, CLAIMANT-APPELLANT,
TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.
Before Michel, Circuit Judge, Friedman, Senior Circuit Judge, and
Bryson, Circuit Judge.
The opinion of the court was delivered by: Per Curiam.
Ivan C. Siewert appeals from the decision of the Court of Veterans Appeals (subsequently renamed the Court of Appeals for Veterans Claims) affirming the denial of Mr. Siewert's request for service connection for non-Hodgkin's lymphoma. We affirm.
Mr. Siewert served on active duty in the United States Army between 1963 and 1966. In 1995, he was diagnosed with non-Hodgkin's lymphoma. As a result of the diagnosis, the Department of Veterans Affairs (DVA) initiated a claim for service-connected disability compensation on Mr. Siewert's behalf. Mr. Siewert subsequently submitted a statement claiming that, while stationed in Germany during his active duty, he had been assigned the task of spraying weeds with a defoliant. He stated that he was not told what chemical he had been given to spray the weeds, but that he believed it to be Agent Orange. He further asserted that he believed in-service exposure to Agent Orange caused his non-Hodgkin's lymphoma.
In January 1996, the DVA denied Mr. Siewert's claim on the ground that his disease was not shown to be service connected. Mr. Siewert appealed to the Board of Veterans' Appeals. As part of his appeal, he submitted a letter from his dermatologist stating in part that "pesticides and non-Hodgkin's . . . lymphoma have been related[.]" Attached to the letter were abstracts from various medical studies, some of which suggested a connection between pesticide exposure and certain cancers, including non-Hodgkin's lymphoma. The Board determined that Mr. Siewert's claim for service connection was not well grounded because, among other reasons, he offered no competent medical evidence to show that his non-Hodgkin's lymphoma resulted from exposure to herbicides or Agent Orange. On appeal, the Court of Veterans Appeals found that Mr. Siewert had failed to present a well-grounded claim and affirmed the Board's decision.
In his brief on appeal to this court, Mr. Siewert argues that the DVA had a statutory duty to assist him pursuant to 38 U.S.C. § 5107(a) regardless of whether his claim was well grounded when he submitted it. There are two problems with this argument. First, as he recognizes, it is contrary to this court's decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997). He urges that Epps was incorrectly decided and should not be followed in this case. As a panel, however, we are required to follow prior precedents of this court; only the en banc court may overturn this court's own governing precedents.
Second, Mr. Siewert did not raise before the Court of Veterans Appeals the section 5107(a) argument that is featured in his brief in this court. In the Court of Veterans Appeals, he argued that his claim was well grounded and that because he had set forth a plausible claim, the DVA was required to assist him in obtaining information to support his claim. In his brief to the Court of Veterans Appeals, Mr. Siewert argued only the factual issue of whether he had submitted a well-grounded claim. Specifically, he asserted that he was exposed to Agent Orange during his period of active duty and that his exposure to Agent Orange caused his disease. Mr. Siewert characterized the sole issue in the case as "[w]hether the Appellant's claim for entitlement to service connection for non-Hodgkin's lymphoma is well-grounded." He then argued that he had "clearly met the burden of asserting a plausible claim and that the information he has provided should prompt the VA to invoke their duty to assist the veteran in gaining information about the use of such herbicides in Germany, and fully support and assist him in his effort to substantiate his claim."
Nowhere in his brief to the Court of Veterans Appeals did Mr. Siewert raise the argument that he presses on appeal: that the section 5107(a) duty to assist applies without regard to whether the veteran has established a well-grounded claim. This court has held that it will not consider legal arguments that were not raised in or decided by the Court of Veterans Appeals. See Boggs v. West, No. 99-7003 (Fed. Cir. 1999).
This court's decision in Linville v. West, 165 F.3d 1382 (Fed. Cir. 1999), which Mr. Siewert cites in his reply brief, does not help him. In that case, the claimant raised an issue before the Court of Veterans Appeals, but that court did not explicitly address it. We held that the issue raised before the Court of Veterans Appeals was properly before us even though it was not discussed in the court's opinion. In this case, by contrast, Mr. Siewert seeks to present to us an issue that he did not raise at all before the Court of Veterans Appeals. For that reason, this case is governed by Boggs, not Linville.
In oral argument, Mr. Siewert's counsel made the related but different contention that this court in Epps and the Court of Veterans Appeals in Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd,78 F.3d 604 (Fed. Cir. 1996) (table), adopted an unduly stringent standard for determining whether a claimant has established a well-grounded claim. As a consequence, he argued, claimants such as Mr. Siewert are being denied their statutory entitlement to assistance in developing their claims.
We do not permit counsel to raise at oral argument an issue not presented in the brief on appeal. See Henry v. Department of Justice, 157 F.3d 863, 864 (Fed. Cir. 1998); MB Assocs. v. United States, 222 Ct. Cl. 493, 495-96 (1979). One passage of Mr. Siewert's brief, however, adverts in passing to the issue of the standard for defining well-groundedness ("This error was compounded when the Epps panel adopted the definition of well groundedness [set forth in Caluza]."). Although that reference to the question of the proper definition of well-groundedness is terse, we deem it sufficient to raise the issue for appellate review, particularly in light of counsel's elaboration on the point at oral argument. On the merits of the definitional issue, however, Mr. Siewert's argument is foreclosed by this court's decision in Epps, in which this court adopted the standard for establishing a well-grounded claim that the Court of Veterans Appeals outlined in Caluza. See Epps, 126 F.3d at 1468. We therefore affirm the Disposition of the Court of Veterans Appeals on the authority of Epps.
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