The Court Looks for Prejudicial Error

The Court Looks for Prejudicial Error

The case of Alan J. Vogan v. Eric K. Shinseki, Opinion Number 09-0049, decided November 15, 2010, concerns an unusual set of facts where the Court found the BVA failed to consider a Diagnostic Code but took the extra step of finding no prejudicial error occurred.

This unusual case involved the veteran experiencing gynecomastia while in service which resulted in an in-service bilateral mastectomy and two subsequent surgeries. In 2003 he was service-connected for scars associated with the mastectomy. The veteran generally argued the VA approached his disability with “tunnel vision”, focusing on the scars while ignoring other Diagnostic Codes that could offer a higher rating.

First, the Court rejected any general assertion that was not supported by specific arguments or suggestions for rating under a Diagnostic Code as a conjectural analogy which was to be avoided. Second, the Court considered the assertion the rating should be rated under DC 7626 which covers breast surgery. The Court recognized the failure to address this Diagnostic Code was error but said “Ordinarily, the Court’s inquiry would end here, with directions for the Board to consider DC 7626 on remand…. However, as discussed below, in this case, the facts are so clear when examined in light of the specific and limited criteria of the DC for “breast, surgery of,” that the Court concludes that a remand is not required.” Id. at *4.

The Court reviewed and summarized case law related to prejudicial error and stated “The underlying imperative of all of these cases is that prejudice should be analyzed from the standpoint of the interest protected by the statutory or regulatory provision involved, to determine whether an error affected the essential fairness of the adjucidication.” Id. at *7. Importantly, while the cases reviewed dealt with prejudicial error in the notice-error context, the Court found that a consideration of prejudicial error was not restricted to the notice-error context and held “that in assessing the prejudicial effect of any error of law or fact, the Court is not confined to the findings of the Board but may examine the entire record before the Agency, which includes the record of proceedings.” Id. at *7.

Regarding DC 7626, the Court found the only possible rating would be under the “wide local excision” criteria and that “he would be entitled to a compensatory rating under DC 7626 only if the wide local excision produced ‘significant alteration of size or form’ of one breast (30%) or both breasts (50%).” But, the Court found “the surgery for gybecomastia was specifically undertaken to reduce abnormally enlarged male breasts, such a reduction does not constitute a compensable injury under the DC. Rather, the very purpose of the surgery, to which the appellant agreed, was to return the appellant’s breasts to the size and form that is normal for males.” Id. at *9. Therefore, the surgery would be classified as wide local excision without significant alteration of size or form and DC 7626 provides a noncompensable rating for such classification. Thus, even if DC 7626 was considered the rating would be 0% whereas the veteran was receiving a 10% rating for scars and thus no prejudice occurred.

The decision also contained a secondary argument about the form of JMRs. The veteran essentially argued an earlier JMR required “development and readjudication consistent with the contents” of this motion and that no additional development was conducted related to the gynecomastia. The Court noted the appellant’s lawyer bargained for specific development on remand and such development should be specific enough for the secretary to comply. Thus, if the veteran’s attorney intended more development, he should have ensured more specific directions were contained in the JMR.

All in all the decision is important for seeing the Court taking the further step of looking for prejudicial error, especially in a non-notice-error context, and finding no prejudice. It serves as a warning the Court will be looking more closely for prejudicial error.

Decision by Judges Hagel, Moorman and Davis.