MARCUS W. O'BRYAN, Claimant-Appellant,
ROBERT A. MCDONALD, Secretary of Veterans Affairs, Respondent-Appellee
Appeal from the United States Court of Appeals for Veterans Claims in No. 11-2584, Judge Lawrence B. Hagel.
KENNETH M. CARPENTER, Law Office of Carpenter Chartered, of Topeka, Kansas, argued for claimant-appellant. On the brief was THEODORE C. JARVI, Law Offices of Theodore C. Jarvi, of Tempe, Arizona.
TANYA B. KOENIG, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were STUART F. DELERY, Assistant Attorney General, ROBERT E. KIRSCHMAN, JR., Director, and SCOTT D. AUSTIN, Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and LARA K. EILHARDT, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before PROST, Chief Judge, CLEVENGER, and DYK, Circuit Judges.
Dyk, Circuit Judge.
Marcus W. O'Bryan (" O'Bryan" ) appeals from a decision of the United States Court of Appeals for Veterans Claims (" Veterans Court" ). The Veterans Court affirmed a 2011 decision of the Board of Veterans' Appeals (" Board" ) that found no clear and unmistakable error (" CUE" ) in a 1980 Board decision to deny Mr. O'Bryan disability benefits based on Leber's optic atrophy (" Leber's" ). O'Bryan v. Shinseki, No. 11-2584, 2013 WL 2631003, at *1 (Vet. App. June 12, 2013). Because the Veterans Court misinterpreted the law on when a congenital or developmental condition is a non-compensable defect, we vacate and remand for further consideration.
This case involves a claim for disability benefits for Leber's optic atrophy, a hereditary condition characterized by progressive degeneration of the optic nerve. Mr. O'Bryan served in the United States Marine Corps from August 1973 to September 1976. There is no evidence that his eye problems were noted upon his entry into service. Upon discharge, he was listed
as having 20/20 vision. In June 1977, he filed a claim for service-connected optic disease. In medical examinations around that time, he variously reported that his vision started to blur in 1974, September 1976, and November 1976. It is undisputed that he was legally blind due to Leber's within one year of discharge. Under the regulations, certain conditions (allegedly including Leber's) manifesting within one year after discharge are treated as though manifested during service. See 38 C.F.R. § § 3.307(a)(3), 3.309(a); see also 38 U.S.C. § 1112(a).
As discussed below, the statute, 38 U.S.C. § 1110, provides disability compensation for a " disease" incurred during or aggravated by service. Mr. O'Bryan argues that his symptoms began during service; that he is suffering from a " disease" ; and that, because his condition was not noted upon entry, he is entitled to a presumption of soundness upon entry, that is, a presumption that the disease was incurred in service. 38 U.S.C. § 1111. He urges that the presumption was not rebutted by the Veteran's Administration (" VA" ) and that he was therefore entitled to compensation.
In one of the medical examinations Mr. O'Bryan underwent, a doctor reported that the diagnosis of Leber's " implies fixed, unchanging subnormal vision and has no known effective treatment." J.A. 31. In 1979, Mr. O'Bryan's claim was denied by the regional office of the VA because Leber's is not a " disease" but rather a " hereditary disorder" characterized by " bilateral progressive optic atrophy with onset usually [at] about the age of 20." J.A. 34. In 1980, the Board, citing 38 C.F.R. § 3.303(c), affirmed the denial, determining that genetically determined optic atrophy is not a " disease" within the statute " because such [a] disorder is congenital or developmental." J.A. 38-39.
In 2010, Mr. O'Bryan attempted to reopen the case, but the Board rejected his contention that it committed CUE in its 1980 decision. The Board concluded that since Leber's was a congenital or developmental defect and not a " disease," the veteran was not entitled to the presumption of soundness in 38 U.S.C. § 1111, and there was no error. The Veterans Court affirmed. While the court recognized that Mr. O'Bryan's condition worsened over time, it explained that the Board did not err in concluding that Leber's is a congenital defect because the Board properly ...