Debra D. Baker v. Denis McDonough, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DEBRA D. BAKER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1972
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-7626, Judge Grant Jaquith.
______________________
Decided: December 19, 2024
______________________
N. ALBERT BACHARACH, JR., N. Albert Bacharach, Jr.,
P.A., Gainesville, FL, argued for claimant-appellant.
MATTHEW JUDE CARHART, 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., PATRICIA M. MCCARTHY; JONATHAN KRISCH, Y.
KEN LEE, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
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BAKER v. MCDONOUGH 2
______________________
Before MOORE, Chief Judge, CHEN, Circuit Judge, and
MURPHY, District Judge.1
MOORE, Chief Judge.
Debra Baker appeals a decision of the United States
Court of Appeals for Veterans Claims (Veterans Court)
affirming the denial by the Board of Veterans’ Appeals
(Board) of Ms. Baker’s motion to revise a prior Board
decision on the basis of clear and unmistakable error
(CUE). We vacate and remand.
BACKGROUND
Ms. Baker served in the United States Air Force from
1979 until 1992. During service, she was treated for
dizziness, nausea, and vomiting. In September 1991, Ms.
Baker was referred to a medical evaluation board (MEB).
Based on spinal fluid analysis and magnetic resonance
imaging (MRI) of Ms. Baker’s head, a military neurologist
opined that she “most likely represented multiple sclerosis,
but did not meet all the criteria” and diagnosed Ms. Baker
with “probable multiple sclerosis.” Appx. 26 (emphases
added). In December 1991, the MEB issued a report that
diagnosed Ms. Baker with “[p]robable multiple sclerosis”
and recommended placing her on a “temporary disability
retirement list (TDRL) for further evaluation and
treatment.” Appx. 28 (emphasis added). In March 1992,
Ms. Baker was discharged from service based on her
placement on TDRL. Appx. 30.
Directly after discharge, Ms. Baker filed for benefits
with the United States Department of Veterans Affairs
1 Honorable John F. Murphy, District Judge, United
States District Court for the Eastern District of
Pennsylvania, sitting by designation.
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BAKER v. MCDONOUGH 3
(VA), requesting disability compensation based on several
conditions, including multiple sclerosis. In April 1992, a
VA physician examined Ms. Baker and concluded she did
not “show any clinical symptoms to suggest” multiple
sclerosis. Appx. 32. The physician noted he had not been
provided with Ms. Baker’s claim file or the results of her
MRI and spinal fluid analysis, and then stated that the
prior diagnosis had been “possible multiple sclerosis.” Id.
at 31 (emphasis added); see Appx. 26. There is no dispute
that the prior diagnosis was “probable,” not “possible,”
multiple sclerosis. Appx. 26. The same physician was
subsequently provided a copy of Ms. Baker’s claim file and
concluded Ms. Baker did not “clinically, or physically, have
enough information to prove the diagnosis of multiple
sclerosis.” Appx. 34.
In September 1992, a VA Regional Office (RO) denied
service connection for multiple sclerosis. Ms. Baker did not
appeal the denial of service connection for multiple
sclerosis, and the claim became final. In May 2009, Ms.
Baker sought to reopen her previously denied claim for
benefits based on multiple sclerosis. In 2014, the RO
granted service connection for multiple sclerosis and
assigned an effective date of May 8, 2009, the date of Ms.
Baker’s claim to reopen.
Ms. Baker appealed the RO’s effective date
determination, arguing the September 1992 denial of
service connection was clearly and unmistakably
erroneous. See Appx. 11. The Board held Ms. Baker had
not established CUE in the September 1992 decision. The
Veterans Court affirmed the Board’s decision, but it did not
address Ms. Baker’s argument that the September 1992
decision failed to apply the statutory benefit of the doubt
rule. See Brief for Appellant at 13–14, Baker v.
McDonough, No. 21-7626, 2023 WL 2259740 (Vet. App.
Feb. 28, 2023). Ms. Baker appeals. We have jurisdiction
pursuant to 38 U.S.C. § 7292.
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BAKER v. MCDONOUGH 4
DISCUSSION
“At any time, a veteran may ask the Board or regional
office to revise a final benefits decision on grounds of ‘clear
and unmistakable error.’” George v. McDonough, 596 U.S.
740, 744 (2022) (citing 38 U.S.C. § 5109A). The elements
of CUE are well-established: (1) either the correct facts, as
they were known at the time, were not before the
adjudicator or the statutory or regulatory provisions extant
at the time were incorrectly applied; (2) the error was
“undebatable” and of the sort that, had it not been made,
would have manifestly changed the outcome at the time;
and (3) a determination of CUE must be based on the
record and law at the time of the prior adjudication.
Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008). The
party challenging a final decision based on CUE bears the
burden of establishing CUE. Pierce v. Principi, 240 F.3d
1348, 1355 (Fed. Cir. 2001). Under 38 U.S.C. § 5109A(a),
“[i]f evidence establishes [clear and unmistakable] error,
the prior decision shall be reversed or revised.”
We have jurisdiction to review “all relevant questions
of law” and “any regulation or any interpretation thereof
(other than a determination as to a factual matter) that
was relied upon” by the Veterans Court that is, inter alia,
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 38 U.S.C. § 7292(d)(1)(A). In
cases that do not implicate constitutional rights, our review
does not extend to factual determinations or to “a challenge
to a law or regulation as applied to the facts of a particular
case.” 38 U.S.C. § 7292(d)(2). As to CUE challenges
specifically, we can review the Veterans Court to determine
whether the correct legal standards were applied, but we
cannot review the Veterans Court’s conclusion as to
whether a particular set of facts constitutes CUE. Willsey,
535 F.3d at 1372 (“[T]he issue before this court is whether
the Veterans Court applied its decision in Russell to the
question of whether there was CUE in [the relevant
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BAKER v. MCDONOUGH 5
decision], not whether the application of that rule to the
particular facts of this case was correct.”).
Ms. Baker argues the September 1992 RO decision
failed to apply the correct legal standard and is therefore
the result of CUE. Ms. Baker argues her records at the
time of the RO decision show a diagnosis of “probable
multiple sclerosis,” Appx. 26; Appx. 28, which satisfies the
correct legal standard and therefore should have resulted
in a grant of service connection for multiple sclerosis as it
would have manifestly changed the outcome at the time.
Because the RO erroneously heightened the applicable
legal standard in its September 1992 decision and required
Ms. Baker to show a definitive diagnosis of multiple
sclerosis, Ms. Baker argues the decision denying service
connection is invalid on CUE grounds.
The VA is statutorily required to find in favor of a
claimant when the evidence of record is in equipoise. The
statute at the time of the September 1992 decision stated:
When, after consideration of all evidence and
material of record in a case before the [VA] with
respect to benefits under laws administered by the
Secretary, there is an approximate balance of
positive and negative evidence regarding the
merits of an issue material to the determination of
the matter, the benefit of the doubt in resolving
each such issue shall be given to the claimant.
38 U.S.C. § 5107(b) (Supp. III 1992). The RO was therefore
required to find in Ms. Baker’s favor if the positive and
negative evidence were in approximate balance, that is,
when the evidence was in equipoise. Skoczen v. Shinseki,
564 F.3d 1319, 1324 (Fed. Cir. 2009) (“[T]he evidence must
rise to a state of equipoise for the claimant to ‘win.’”).
Ms. Baker’s argument on appeal, as it was, in part, to
the Veterans Court, is that the September 1992 RO
decision did not apply this correct legal standard. At the
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BAKER v. MCDONOUGH 6
time of the decision, Ms. Baker’s records reflected mixed
conclusions on a diagnosis of multiple sclerosis. On the one
hand, a military neurologist concluded that Ms. Baker
“most likely represented multiple sclerosis, but did not
meet all the criteria.” Appx. 26 (emphases added). The
military neurologist, as well as the MEB, rendered a
diagnosis of “probable multiple sclerosis.” Id.; Appx. 28.2
Ms. Baker argues that “probable” indicates that it was
more likely than not that, in September 1992, Ms. Baker
had multiple sclerosis. On the other hand, a VA physician
evaluated Ms. Baker and determined that she did “not
show any clinical symptoms to suggest” multiple sclerosis.
Appx. 32. It is undebatable that the RO was required to
find in her favor if the evidence was in equipoise, but
nothing in the RO’s rating decision suggests whether it
made that determination. This is not a question of fact, but
rather a question of the correct legal standard that depends
on the factual finding of whether the evidence was in
equipoise. Willsey, 535 F.3d at 1372 (assessing whether the
correct legal standard was applied may require
2 The VA physician’s April 1992 report incorrectly
lists Ms. Baker’s earlier diagnosis as “possible multiple
sclerosis.” Appx. 31. Though the examining physician
performed his own neurological assessment of Ms. Baker,
this statement is not indicative of that assessment, but
instead inaccurately recites Ms. Baker’s prior diagnosis
based on previous test results, to which the physician
expressly stated he had not been provided access. Compare
id. (“The results of [the spinal fluid analysis and MRI scans
of the brain] are not available. I do not have her C-file but
the diagnosis of possible multiple sclerosis was made.”
(emphasis added)), with Appx. 26 (explaining results of Ms.
Baker’s head MRI and lumbar puncture and concluding
her “[d]iagnosis at this time is probable multiple sclerosis”
(emphasis added)).
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BAKER v. MCDONOUGH 7
“address[ing] the facts of the case, and the court’s analysis
of those facts, in some detail”).
In adjudicating Ms. Baker’s CUE claim, the Board held
Ms. Baker had not established CUE in the September 1992
RO decision because she did not show that the record
before the RO reflected an undebatable diagnosis of
multiple sclerosis at the time. Appx. 13 (“[T]here was no
clear and unmistakable error in the September 1992 rating
decision that denied service connection for multiple
sclerosis. Critically, based on the record that existed at the
time of the September 1992 rating decision, the evidence
was unclear as to whether the Veteran had multiple
sclerosis . . . .”); see id. at 14–15 (“At the time of the
September 1992 rating decision, the record was ambiguous
as to whether the Veteran actually had multiple
sclerosis.”). But Ms. Baker is not required to prove that she
definitively had multiple sclerosis in September 1992 to
succeed in her CUE claim. She must show only that the
RO in September 1992 used the incorrect legal standard
and that this error manifestly changed the outcome of her
claim. Willsey, 535 F.3d at 1371. The Board—and the
Veterans Court—erred by failing to evaluate whether it
was undebatable that the facts before the RO were in
equipoise. By evaluating only whether there was a clear
diagnosis and failing to address the benefit of the doubt
rule, the Board and the Veterans Court applied the wrong
statutory standard. This was a legal error, regardless of
how the evidence in Ms. Baker’s case was ultimately
weighed.
While we do not review factual findings made by the
Board or Veterans Court, we note that the Board found “the
medical evidence available in September 1992 primarily
showed that the Veteran possibly did or possibly did not
have multiple sclerosis” and “reasonable minds did differ
as to whether the Veteran had multiple sclerosis at the
time of the September 1992 rating decision.” Appx. 15.
This suggests that the Board did find the evidence at the
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BAKER v. MCDONOUGH 8
time of the September 1992 RO decision undebatably was
in equipoise, such that the RO was required to apply the
benefit of the doubt rule, but the Board failed to expressly
make that determination, and we may not make the
underlying fact finding ourselves. Ms. Baker would argue
she proved even more than equipoise as the record reflected
a diagnosis of “probable” multiple sclerosis. Again, we may
not make this fact finding in the first instance.
The VA frames Ms. Baker’s arguments as contesting a
factual finding over which we lack jurisdiction. We do not
agree. Ms. Baker argues the RO applied an incorrect legal
standard in September 1992, citing 38 U.S.C. § 5107(b), the
applicability of which depends on whether the evidence
was undebatably in equipoise—a question that the
Veterans Court and the Board failed to consider. For the
reasons above, we agree with Ms. Baker.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. We vacate the Veterans
Court’s decision and remand for the Veterans Court to
remand Ms. Baker’s CUE claim to the Board for further
adjudication.
VACATED AND REMANDED
COSTS
Costs to Ms. Baker.
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