Wilson E. Tucker v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILSON E. TUCKER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1567
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-2924, Judge Grant Jaquith.
______________________
Decided: October 17, 2023
______________________
WILLIAM C. HERREN, Herren Law Office, Houston, TX,
for claimant-appellant.
BRENDAN D AVID J ORDAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, P ATRICIA M. MCCARTHY ,
L OREN MISHA P REHEIM ; AMANDA BLACKMON, BRIAN D.
G RIFFIN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
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TUCKER v. MCDONOUGH 2
______________________
Before STOLL , CUNNINGHAM , and STARK, Circuit Judges.
P ER CURIAM .
Wilson E. Tucker appeals from the decision of the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”) affirming the decision of the Board of Veter-
ans’ Appeals (“Board”) denying Mr. Tucker’s claim for
Clear and Unmistakable Error (“CUE”) relating to a Feb-
ruary 1979 regional office (“RO”) decision denying service
connection for schizophrenia. Tucker v. McDonough, No.
20-2924, 2021 WL 6143675 (Vet. App. Dec. 30, 2021). For
the reasons provided below, we affirm in part and dismiss
in part.
I
Mr. Tucker served on active duty in the U.S. Marine
Corps from September 1974 to September 1977. On Octo-
ber 23, 1978, he was admitted to the Jackson VA Hospital
in Mississippi. Over the preceding nine days, he had been
arrested for possession of marijuana, then hospitalized in
Meridian, Mississippi, and discharged from that hospital
with guidance that he obtain a psychiatric evaluation. Mr.
Tucker’s chief complaints on admission to the Jackson VA
Hospital were “withdrawn behavior, [acting] short tem-
pered, hearing things for the past one to two months, and
agitation.” App’x 12. He was diagnosed with schizophre-
nia, paranoid type.
On October 27, 1978, Mr. Tucker left the Jackson VA
Hospital without approval. Then, on November 2, 1978, he
was admitted to East Mississippi State Hospital pursuant
to a court order. The admission notes from East Missis-
sippi State Hospital stated that Mr. Tucker had been
“drinking, smoking marijuana and taking ‘angel dust.’”
App’x 14. He was again diagnosed with schizophrenia, par-
anoid type. On November 7, 1978, Mr. Tucker underwent
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TUCKER v. MCDONOUGH 3
a psychological evaluation at East Mississippi State Hospi-
tal. The examination notes show that Mr. Tucker
“acknowledged the intake of marijuana and alcohol, appar-
ently on a regular basis, but denied the use of other drugs
for the previous four years.” App’x 17. A social work report
dated November 11, 1978 from East Mississippi State Hos-
pital indicates that Mr. Tucker’s mother said that “when
smoking marijuana in conjunction with alcohol [Mr.
Tucker] seemed to have become more belligerent toward
those around him” and “would also go and talk to himself.”
App’x 20. The social work report’s assessment was that Mr.
Tucker needed to “change [his] socially unacceptable be-
haviors and learn to control his abuse of alcohol and drugs.”
App’x 21.
On November 9, 1978, Mr. Tucker filed a claim for ser-
vice connection for schizophrenia. On February 5, 1979,
the RO issued a rating decision denying his claim. The rat-
ing decision, in relevant part, stated:
As to schizophrenia, there is no evidence of
complaint, treatment or diagnosis in service
or within one year after discharge. The pre-
ponderance of evidence indicates that [Mr.
Tucker] was hospitalized for the first time on
10-23-78 with history of involvement in drugs
and marijuana. Since there is no evidence to
show that [Mr. Tucker’s] psychiatric problems
go back to an earlier date than that which is
identified with drug abuse, it cannot be shown
that the etiology is related to service or comes
within the presumptive period after service
for compensation purposes.
App’x 22. Mr. Tucker did not appeal the RO’s decision,
which became final.
On September 22, 2014, Mr. Tucker filed a CUE claim
to reverse or revise the RO’s 1979 rating decision. He ar-
gued that his October 1978 schizophrenia diagnosis
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TUCKER v. MCDONOUGH 4
established that he did, in fact, exhibit schizophrenia
symptoms during the one-year presumptive period, which
ended in September 1978, because a schizophrenia diagno-
sis requires “a finding of duration of symptoms of six
months or more.” App’x 27. Mr. Tucker also argued that
the RO erred by focusing on the first dated medical diagno-
sis and failing to consider the “entire suite of evidence,” in-
cluding lay evidence in the record. In a decision issued on
April 19, 2017, the RO found no CUE in the 1979 rating
decision, explaining that since there was “no evidence to
show that [Mr. Tucker’s] psychiatric problems go back to
an earlier effective date [than] that which is identified with
drug abuse it cannot be shown that the etiology is related
to service or comes within the presumptive period after ser-
vice for compensation purposes.” App’x 33. Mr. Tucker ap-
pealed that decision to the Board.
On December 31, 2019, the Board issued a decision
finding that the RO’s 1979 rating decision did not contain
CUE. The Board explained:
There is no indication that the regional office
erred in the application of the law or the facts
in rendering the February 1979 rating deci-
sion. The applicable law . . . clearly indicates
that service connection based on the one-year
presumptive period cannot be established for
a chronic disease where the disease is a result
of drug ingestion. In this case, the regional
office found that [Mr. Tucker’s] schizophrenia
was precipitated by drug use and that there
was no indication that the symptoms existed
prior to the drug use, concluding that [Mr.
Tucker] did not experience a chronic disease
within one year of separation [from] service
and foreclosing service connection on a pre-
sumptive basis.
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TUCKER v. MCDONOUGH 5
App’x 48. Mr. Tucker then appealed the Board’s decision
to the Veterans Court.
The Veterans Court affirmed the Board’s decision, find-
ing that Mr. Tucker’s reliance on medical treatises to es-
tablish the six-month incubation period for schizophrenia
was misplaced because the editions of the treatises he cited
to did not exist at the time of the RO’s 1979 rating decision.
The Veterans Court also found that the RO’s consideration
of the evidence was consistent with the regulations then in
effect and that Mr. Tucker failed to show that the RO’s rat-
ing decision would have been manifestly different had the
RO explicitly addressed his drug use in relation to the re-
buttal standard under 38 C.F.R. § 3.307. Mr. Tucker
timely appealed to us.
II
We have limited jurisdiction to review judgments of the
Veterans Court. We may review the validity of a decision
“on a rule of law or of any statute or regulation . . . or any
interpretation thereof . . . that was relied upon by” the Vet-
erans Court. 38 U.S.C. § 7292(a). However, “[e]xcept to
the extent that an appeal . . . presents a constitutional is-
sue,” we may not review “a challenge to a factual determi-
nation” or “to a law or regulation as applied to the facts of
a particular case.” Id. § 7292(d)(2). We review statutory
and regulatory interpretations relied upon by the Veterans
Court de novo. See Mayfield v. Nicholson, 499 F.3d 1317,
1321 (Fed. Cir. 2007). And we will “hold unlawful and set
aside any regulation or any interpretation thereof” that we
find to be: “(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (B) contrary to
constitutional right, power, privilege, or immunity; (C) in
excess of statutory jurisdiction, authority, limitations, or in
violation of a statutory right; or (D) without observance of
procedure required by law.” 38 U.S.C. § 7292(d)(1).
III
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TUCKER v. MCDONOUGH 6
Mr. Tucker first contends that the Veterans Court and
the Board incorrectly applied 38 C.F.R. § 3.307(b) by not
requiring a determination of whether he had been diag-
nosed with an acute condition in 1978. The government
responds that we lack jurisdiction because the Veterans
Court did not interpret the regulation. Alternatively, even
if we find jurisdiction, the government argues we should
affirm because no finding of whether Mr. Tucker had an
acute diagnosis was necessary.
We may “determine whether the legal requirement of
the statute or regulation has been correctly interpreted in
a particular context where the relevant facts are not in dis-
pute.” Szemraj v. Principi, 357 F.3d 1370, 1375 (Fed. Cir.
2004); see also Bailey v. Principi, 351 F.3d 1381, 1384 (Fed.
Cir. 2003) (exercising jurisdiction “when the material facts
are not in dispute and the adoption of a particular legal
standard would dictate the outcome” of issue). Here, there
is no dispute over the relevant facts: the RO did not make
a finding of acute diagnosis in its rating decision, and no
one contends that it did. Mr. Tucker’s appeal on this issue,
then, turns entirely on whether Section 3.307(b) should be
interpreted as requiring such a finding. Thus, we have ju-
risdiction to address the interpretation of Section 3.307(b).
At the pertinent time, Section 3.307(b) stated, in rele-
vant part:
The diseases listed in § 3.309(a) will be ac-
cepted as chronic, even though diagnosed as
acute because of insidious inception and
chronic development, except: (1) where they
result from intercurrent causes . . . ; or (2)
where a disease is the result of drug ingestion
or a complication of some other condition not
related to service.
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TUCKER v. MCDONOUGH 7
38 C.F.R. § 3.307(b) (1970). The plain meaning of the reg-
ulation is clear and permissive: diseases listed1 in Section
3.309(a), “even though diagnosed as acute,” may still be ac-
cepted as chronic, under the conditions set out in Section
3.307(b). Section 3.307(b) contains two exceptions, i.e., sit-
uations in which diseases listed in Section 3.309(a) may not
be accepted as chronic: (1) where the disease results from
intercurrent causes; and (2) where the disease “is the result
of drug ingestion or a complication of some other condition
not related to service.” Thus, the RO did not require an
acute diagnosis in order to deny Mr. Tucker’s claim; it was
permitted to deny that claim based on his disease, schizo-
phrenia, being “the result of drug ingestion,” regardless of
whether his schizophrenia was acute or chronic.
Mr. Tucker next argues that the Veterans Court and
the Board erred by failing to decide whether the RO exer-
cised “medical judgment” in reaching the conclusion that
his schizophrenia was connected to his drug use. Mr.
Tucker’s contention hinges on whether the evidence the RO
relied on in making its rating decision was sufficiently
medically independent to rebut the presumption that Mr.
Tucker’s schizophrenia was service connected. Addressing
this issue would require us to weigh the evidence, a task
outside of our jurisdiction. See Andino v. Nicholson, 498
F.3d 1370, 1373 (Fed. Cir. 2007) (finding that “making
credibility determinations or weighing evidence . . . is be-
yond our jurisdiction”). Thus, we dismiss this part of ap-
peal for lack of jurisdiction.
IV
We have considered Mr. Tucker’s remaining argu-
ments and find that they lack merit. Accordingly, for the
1 Psychosis was listed among the chronic diseases
subject to presumptive entitlement in the operative version
of Section 3.309(a). See 38 C.F.R. § 3.309(a) (1976).
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TUCKER v. MCDONOUGH 8
reasons given above, we affirm the Veterans Court’s inter-
pretation of 38 C.F.R. § 3.307(b) and dismiss the challenge
to the fact-based determination that Mr. Tucker’s schizo-
phrenia was connected to his drug use.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
No costs.
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