Margaret P. Edmondson v. David J. Shulkin, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARGARET P. EDMONDSON,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2016-1591
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-2326, Judge Coral Wong
Pietsch.
______________________
Decided: June 22, 2017
______________________
BARBARA B. MISTISHEN, Albany, NY, argued for claim-
ant-appellant.
MARTIN F. HOCKEY , J R., Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by BENJAMIN C. MIZER, ROBERT E.
K IRSCHMAN, J R.; BRIAN D. G RIFFIN, BRANDON A. J ONAS ,

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EDMONDSON v. SHULKIN 2
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before N EWMAN, MAYER , and O’MALLEY , Circuit Judges.
O’MALLEY, Circuit Judge.
Margaret Edmondson seeks review of the of the Octo-
ber 21, 2015 decision of the Court of Appeals for Veterans
Claims (“Veterans Court”), which affirmed the Board of
Veterans’ Appeals (“the Board”) decision denying her late
husband’s entitlement to service connection for prostate
cancer. Edmondson v. McDonald, No. 15-2326, 2015 WL
6161854 (Vet. App. Oct. 21, 2015). For the following
reasons, we affirm the decision of the Veterans Court.
BACKGROUND
Mr. Edmondson served on active duty in the United
States Army from August 1960 to August 1963, including
service in Laos from October 1961 to August 1962. Ed-
mondson, 2015 WL 6161854, at *1. He was diagnosed
with prostate cancer in 2009. Id. On December 23, 2011,
Mr. Edmondson filed for service-connected disability for
prostate cancer “due to exposure to Agent Orange while
[in] service in Laos.” Id. On September 5, 2012, the
Regional Office denied his claim, stating in relevant part:
“Your service personnel records show you were in Laos.
There is no evidence showing you were in Vietnam or that
you were exposed to Agent Orange, therefore, service
connection is denied based on presumption.” J.A. 35.
On January 23, 2013, Mr. Edmondson appealed the
Regional Office’s decision to the Board. He argued that
the United States began spraying Agent Orange in Laos
in 1961 and attached a January 2013 internet article as
supporting evidence. Edmondson, 2015 WL 6161854, at
*1. On June 5, 2015, the Board likewise denied Mr.
Edmondson’s entitlement to service connection. Specifi-

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EDMONDSON v. SHULKIN 3
cally, the Board determined that: (1) there was no evi-
dence that he had served in a location, such as Vietnam,
that would entitle him to a statutory or regulatory pre-
sumption of exposure to herbicides (e.g., 38 U.S.C.
§ 1116(f); 38 C.F.R. § 3.307(a)(6)(iii)); and (2) he had
provided no evidence of personal exposure, beyond general
assertions that herbicides were sprayed in Laos. Id. at *2.
The Board acknowledged that the public record establish-
es Agent Orange was sprayed in Laos, taking judicial
notice of an article published in the Air University Review,
but only beginning in 1965—several years after Mr.
Edmondson’s service there. The Board held, accordingly,
that he had failed to demonstrate a nexus between his
medical diagnosis and military service.
On June 15, 2015, Mr. Edmondson appealed the
Board’s decision to the Veterans Court, which affirmed
the Board on October 21, 2015. Id. at *1. On appeal, Mr.
Edmondson argued that the Board: (1) violated his due
process rights by not affording him a presumption of
exposure; (2) failed to make a determination as to wheth-
er he engaged in combat; and (3) did not adequately
explain its determination that herbicides were not
sprayed in Laos during his service. Id. at *2. Regarding
due process in particular, Mr. Edmondson asserted that
“the Board has placed an impossible and fundamentally
unfair evidentiary burden on him” because “any evidence
of the covert military operations that took place in Laos in
1961 and 1962 would be within the control of the United
States Government, if they exist at all.” Id. at *4. The
Veterans Court rejected this argument, observing that:
[Mr. Edmondson] fails, in his principal brief, to
cite any evidentiary support for his assertion,
which is a factual predicate to his constitutional
argument, that any additional evidence of mili-
tary operations in Laos during his period of ser-
vice there would be within the control of the U.S.
government and thus impossible for him to obtain.

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EDMONDSON v. SHULKIN 4
The appellant's bare assertion that the United
States was involved in a secret war in Laos is in-
sufficient to establish that it was impossible for
him to obtain evidence regarding relevant U.S.
operations there. He cited no evidence to this ef-
fect in his principal brief, including any evidence
that he made failed attempts to obtain such in-
formation through the Freedom of Information
Act or otherwise.
Id. at *4. The Veterans Court additionally rejected Mr.
Edmondson’s other arguments, for reasons not relevant to
the instant appeal. Id. at *5–8.
On November 22, 2015, Mr. Edmondson died from
prostate cancer. Mrs. Edmondson subsequently filed a
motion for substitution, which the Veterans Court grant-
ed on January 20, 2016. Mrs. Edmondson timely appeals
the Veterans Court’s October 21, 2015 decision to this
court.
STANDARD OF REVIEW
Our ability to review a decision of the Veterans Court
is limited. We may review “the validity of a decision of
the [Veterans] Court on a rule of law or of any statute or
regulation . . . or any interpretation thereof (other than a
determination as to a factual matter) that was relied on
by the [Veterans] Court in making the decision.”
38 U.S.C. § 7292(a) (2012). We have exclusive jurisdiction
“to review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof
brought under [38 U.S.C. § 7292], and to interpret consti-
tutional and statutory provisions, to the extent presented
and necessary to a decision.” Id. § 7292(c). Except to the
extent that an appeal presents a constitutional issue,
however, we “may not 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.” Id. § 7292(d)(2).

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EDMONDSON v. SHULKIN 5
D ISCUSSION
Sections 1110 and 1131 of Title 38 of the United
States Code provide “compensation” to veterans for per-
sonal injury or disease incurred “in line of duty.” 38
U.S.C. §§ 1110, 1131. Generally, to establish this connec-
tion to service, a veteran must show: “(1) the existence of
a present disability; (2) in-service incurrence or aggrava-
tion of a disease or injury; and (3) a causal relationship
between the present disability and the disease or injury
incurred or aggravated during service.” Holton v.
Shinseki, 557 F.3d 1362, 1366 (Fed. Cir 2009) (quoting
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir.
2004)); see also 38 U.S.C. § 101(16).
The requirements of this three-part test are obviated
in certain circumstances by regulations from the Depart-
ment of Veterans Affairs and superseding statutory
provisions. Of particular relevance to this appeal, pros-
tate cancer is presumed to be service connected if: (1) the
veteran was exposed in service to certain herbicides; and
(2) the condition becomes manifest to a degree of 10% or
more at any time after service. 38 C.F.R. 3.309(e); 66 Fed.
Reg. 23,166 (May 8, 2001). Veterans who served on active
duty in Vietnam between January 9, 1962 and May 7,
1975 are presumed to have been so exposed. 38 U.S.C.
§ 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).
Absent the Vietnam presumption, a veteran may still
demonstrate actual exposure to herbicides to qualify for
the service connection presumption. 38 C.F.R.
§§ 3.307(a)(6), 3.309(e). But in demonstrating actual
exposure, as with other factual predicates to establishing
service connection, the burden of producing evidence is on
the veteran. 38 U.S.C. § 5107(a) (“[A] claimant has the
responsibility to present and support a claim for bene-
fits . . . .”); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed.
Cir. 2009) (“It is the veteran’s ‘general evidentiary burden’
to establish all elements of his claim . . . .”). A veteran is

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EDMONDSON v. SHULKIN 6
given the “benefit of the doubt” on an “issue material to
the determination of a matter” only “[w]hen there is an
approximate balance of positive and negative evidence.”
38 U.S.C. § 5107(b); see also Skoczen v. Shinseki, 564 F.3d
1319, 1324 (Fed. Cir. 2009) (describing § 5107(b) as set-
ting forth an “equality of the evidence” standard as to
persuasive weight).
The government’s briefing on appeal suggests that
Mrs. Edmondson raises equal protection and facial due
process challenges. See, e.g., Appellee Br. 13. Counsel for
Mrs. Edmondson, however, clarified unambiguously at
oral argument that the only issue raised on appeal is an
as-applied procedural due process challenge to the regula-
tory obligation to establish proof of exposure. See, e.g.,
Oral Argument at 00:34–00:37, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
16-1591.mp3 (describing the case as “a constitutional
question, specifically procedural due process”); id. at
00:55–01:00 (responding in the affirmative to the ques-
tion: “So is there no equal protection claim on the table?”).
Specifically, Mrs. Edmondson argues that the obliga-
tion to show actual exposure under § 3.307(a)(6), as
applied in this case, “denied [Mr. Edmondson] a fair
opportunity for a hearing” because he was “on a covert
mission,” and hence “evidence might not have been kept
or the government might be reluctant to release it for
security reasons.” Appellant’s Br. 11; see also Oral Argu-
ment at 2:30–2:50 (denying making a facial challenge to
either § 1116(f) or 38 C.F.R. § 3.307(a)(6), and instead
claiming to be “challenging . . . the way [the regulation
requiring proof of exposure] is applied”); id. at 3:32–3:48
(responding in the affirmative to the question: “You’re
just saying that he shouldn’t have to have this separate
burden because it is an impossible burden to satisfy, is
that [correct]?”). Thus, Mrs. Edmondson is not attacking
38 U.S.C. § 1116(f) or any congressional line-drawing in
connection with that statute. Instead, she is contending

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EDMONDSON v. SHULKIN 7
that, by not applying a presumption in his case similar to
that in § 1116(f), the Board has denied him procedural
due process.1
Turning to the procedural due process argument Mrs.
Edmondson does make, we agree with the Veterans Court
that it depends fundamentally on the assumption that
evidence supporting exposure—if it exists—could not be
obtained from the government after reasonable effort. If
that evidence could have, in fact, been obtained, then Mrs.
Edmondson does not otherwise suggest a lack of notice,
opportunity to be heard, or any other deficiency relevant
to Fifth Amendment concerns. See, e.g., Edwards v.
Shinseki, 582 F.3d 1351, 1355 (Fed. Cir. 2009) (“The
fundamental requirement of due process is the opportuni-
ty to be heard ‘at a meaningful time and in a meaningful
manner.”) (quoting Mathews v. Eldridge, 424 U.S. 319,
332–33 (1976)).
Based on the record now before us, however, it would
appear that at no point in the pendency of this case did
the Edmondsons actually attempt to obtain evidence
relating to their claim. Below, for example, the Veterans
Court noted the absence of a Freedom of Information Act
request or other documented inquiry, and Mrs. Edmond-
son does not challenge that finding on appeal. Indeed, the
1 The government’s brief discusses procedural and
jurisdictional issues relating to the assertion of equal
protection or facial challenges to § 1116(f). Specifically, it
addresses whether the Veterans Court has jurisdiction to
address facial challenges to a statute and whether Mrs.
Edmondson did or could waive the assertion of such
challenges. And, the government addresses the merits of
those arguments to the extent preserved or permissible in
this appeal. Given the clarifications regarding the scope
of Mrs. Edmondson’s claims provided at oral argument,
we need not address these interesting questions.

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EDMONDSON v. SHULKIN 8
only record evidence available is a single internet article,
submitted by Mr. Edmondson to the Board, stating gener-
ally that herbicides were sprayed in Laos. But that
article does not indicate that spraying in Laos occurred
during Mr. Edmondson’s service there, much less that the
existence of covert operations created obstacles to obtain
evidence from the government regarding any such spray-
ing. As a result, we are left with bare assertions and
nothing more: the relevant evidence “might” not have
been kept or “might” not be released for security reasons,
and spraying of Agent Orange “might” have occurred
earlier than documented as part of a covert war in Laos.
Accordingly, we need not address whether, had the
Edmondsons actually tried and failed to substantiate
exposure due to governmental intransigence or impossi-
bility, a due process violation would have occurred. Our
decision instead relies on the straightforward and well-
established principle that purely hypothetical obstacles
are not sufficient to sustain due process claims. See, e.g.,
Dusenbery v. United States, 534 U.S. 161, 170–71 (2002)
(“[T]he criterion is not the possibility of conceivable injury
. . . .”) (quoting Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 315 (1950)); United States v. Marion,
404 U.S. 307, 325–26 (1971) (“Appellees rely solely on the
. . . possibility of prejudice . . . . Events of the trial may
demonstrate actual prejudice, but at the present time
appellees’ due process claims are speculative and prema-
ture.”).
CONCLUSION
Although we are grateful for Mr. Edmondson’s honor-
able service to the country, after full review of the record
and careful consideration, we must affirm.
AFFIRMED

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