Mattox v. McDonough

56 F.4th 1369

Larry W. MATTOX, Claimant-Appellant

v.Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2021-2175

United States Court of Appeals, Federal Circuit.

Decided: January 9, 2023

Kenneth M. Carpenter, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.

Meen Geu Oh, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Brian M. Boynton, Patricia M. McCarthy, Loren Misha Preheim; Brian D. Griffin, Andrew J. Steinberg, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before Stoll, Schall, and Stark, Circuit Judges.

Schall, Circuit Judge.

Larry W. Mattox appeals the April 26, 2021 decision of the United States Court of Appeals for Veterans Claims ("Veterans Court"). Mattox v. McDonough , 34 Vet. App. 61 (2021). In that decision, the Veterans Court affirmed the April 5, 2019 decision of the Board of Veterans' Appeals ("Board") that denied Mr. Mattox entitlement to service connection for an acquired psychiatric disorder, specifically post-traumatic stress disorder ("PTSD"). J.A. 72.

In its decision, the Veterans Court addressed two issues that are relevant for this appeal. First, the court held that Mr. Mattox's appeal to the Board was not subject to the provisions of the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 ("AMA"). Mattox , 34 Vet. App. at 66–71. As a result, the court ruled that Mr. Mattox was not prejudiced by the Board's failure to provide him with a notice of its decision that met the requirements of 38 U.S.C. § 5104(b), as amended by the AMA. Id. at 71. Second, the Veterans Court held that the Board did not err when it concluded that the benefit-of-the-doubt rule, codified at 38 U.S.C. § 5107(b) (2000), did not apply in Mr. Mattox's case. Mattox , 34 Vet. App. at 74–75. The Board reached that conclusion because, although it recognized that a veteran is entitled to the benefit of the doubt "where the evidence is in approximate balance," it found that, in Mr. Mattox's case, "the preponderance of the evidence" was against his claim for service connection. J.A. 81–82.

For the reasons set forth below, we hold that Mr. Mattox's appeal to the Board was not covered by the AMA. We also hold that the Board did not err in interpreting the benefit-of-the-doubt rule and in not applying it in Mr. Mattox's case. We therefore affirm the decision of the Veterans Court.

BACKGROUND

I

Mr. Mattox served in the U.S. Navy from October of 1967 to October of 1971. Mattox , 34 Vet. App. at 64. His period of service included time spent on a vessel in the waters of Vietnam. Id.

On July 31, 2015, Mr. Mattox filed a claim for disability benefits with the Department of Veterans Affairs ("VA") St. Louis Regional Office ("RO"). In it, he sought service connection for PTSD. J.A. 27–30. In support of his claim, he submitted the diagnosis of a private doctor. The doctor's diagnosis was presented in a VA Disability Benefits Questionnaire ("DBQ"). Id. at 114–19. The doctor concluded that Mr. Mattox suffered from PTSD and that in-service activities caused his disability. Id. at 116–17.

On October 23, 2015, Mr. Mattox was examined by a VA psychologist. The examiner concluded that Mr. Mattox did not present "a diagnosis of PTSD according to the DSM-5 diagnostic criteria."¹ J.A. 41. Rather, based on the information presented to him by Mr. Mattox, the examiner found that Mr. Mattox suffered from moderate alcohol and cannabis use disorder, which explained his feelings of depression, anxiety, and irritability. Id. ; see also id. at 31. The examiner based his findings, in part, on the fact that Mr. Mattox spent a "great deal of time" on "getting and using cannabis." Id. at 32. In addition, Mr. Mattox reported to the examiner that he used cannabis "about daily," that he experienced feelings of anxiety, and that he used alcohol and cannabis to decrease those feelings. Id. at 37.

On December 28, 2015, following receipt of the assessments of Mr. Mattox's private doctor and the VA examiner, as well as various record documents, the RO concluded that Mr. Mattox did not suffer from PTSD. It therefore denied his claim. J.A. 45–48. Relevant here, the RO credited the VA examiner's diagnosis of Mr. Mattox's condition over that of Mr. Mattox's private doctor. Id. at 46. On December 21, 2016, following the filing of his notice of disagreement, id. at 49–50, and the RO's subsequent issuance of its statement of the case, id. at 51–69, Mr. Mattox appealed to the Board, id. at 70.

In its April 5, 2019 decision, the Board affirmed the RO's denial of Mr. Mattox's claim. J.A. 72. Like the RO, the Board found that "the weight of the evidence" did not support Mr. Mattox's claim that he suffered from PTSD. Id. at 77. In the Board's view, the observations and findings of the VA examiner were "highly probative" on the question of Mr. Mattox's condition, id. at 78, and the Board noted what it viewed as deficiencies in the diagnosis of Mr. Mattox's private doctor, id. at 78–79. In sum, the Board observed that "the October 2015 examiner provided a more thorough review of the evidence and more vigorous rationale for the conclusion reached." Id. at 79. The Board concluded its opinion with the following statement:

[T]he Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes that the Veteran has been diagnosed with PTSD during the pendency of his appeal. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection.

Id. at 81–82 (citing 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 (2001) ) (emphasis added). Mr. Mattox appealed the Board's decision.

II

Before the Veterans Court, Mr. Mattox raised two arguments that are relevant for us.² His first argument related to 38 U.S.C. § 5104. The 1994 version of that statute, which was in effect when Mr. Mattox filed his claim for benefits on July 31, 2015, provided, in relevant part, that "[i]n the case of a decision by the Secretary under [ 38 U.S.C. § 511 ] affecting the provision of benefits to a claimant," the Secretary was required to provide notice of the decision to the claimant and his or her representative. 38 U.S.C. § 5104(a) (1994).³ The statute also provided that "[i]n any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include (1) a statement of the reasons for the decision, and (2) a summary of the evidence considered by the Secretary." Id. § 5104(b) (1994).

On August 23, 2017, approximately two years after the RO decided Mr. Mattox's claim, Congress, as part of the AMA, amended § 5104(b) to provide enhanced notice requirements. The amendment required that "[e]ach notice provided under subsection (a)" of § 5104 include seven specified items. 38 U.S.C. § 5104(b) (2017). The Board's notice to Mr. Mattox with respect to its April 5, 2019 decision did not include the items required by the amended version of § 5104(b).

Mr. Mattox argued to the Veterans Court that, when it issued its April 5, 2019 decision, the Board was bound by the amended version of § 5104(b), which went into effect on February 19, 2019.⁴ Thus, he contended, the Board erred by not providing him with the more fulsome notice required by the amended version of § 5104(b). Mattox , 34 Vet. App. at 65. Mr. Mattox also argued that he was prejudiced by the Board's error.⁵

Mr. Mattox's second argument before the Veterans Court was that the Board had violated the benefit-of-the-doubt rule under 38 U.S.C. § 5107(b). According to Mr. Mattox, because the record (as it pertained to whether he had service-connected PTSD) contained one physical piece of evidence pointing each way (the contradictory opinions of his private doctor and the VA examiner), it stood numerically even on the issue of his condition. Under these circumstances, Mr. Mattox urged, the VA was required by law to give him the benefit of the doubt and concede that he suffered from service-connected PTSD. Mattox , 34 Vet. App. at 65–66.

The Veterans Court rejected both of Mr. Mattox's arguments. Addressing first his contention relating to defective notice, the court began by noting that, although Congress created a new adjudicatory system in the AMA, it did not eliminate the then-existing system—referred to as the "legacy" system. Id. at 68 ; see Pub. L. No. 115-55 sec. 6. The court explained that "Congress created a system in which some administrative appeals would be processed under the legacy system and others would be processed under the newly enacted AMA." Mattox , 34 Vet. App. at 68 (footnote omitted). In addition, the court pointed out that 38 C.F.R. § 3.2400(a) provides that the AMA applies to all claims "[f]or which VA issues notice of an initial decision on or after the effective date of the modernized review system" or "[w]here a claimant has elected review of a legacy claim under the modernized review system." Id. at 69 (quoting 38 C.F.R. § 3.2400(a) (2019) ).

Legacy claims are defined by both statute and regulation. The AMA provides that a "legacy claim" is a claim:

(A) that was submitted to the Secretary of Veterans Affairs for a benefit under a law administered by the Secretary; and

(B) for which notice of a decision under section 5104 of title 38, United States Code, was provided by the Secretary before [February 19, 2019].

Pub. L. No. 115-55 sec. 6(2). At the same time, 38 C.F.R. § 3.2400(b) provides that "[a] legacy claim is a claim, or request for reopening or revision of a finally adjudicated claim, for which VA provided notice of a decision prior to the effective date of the modernized review system and the claimant has not elected to participate in the modernized review system as...