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   United States Court of Appeals for the Federal Circuit

                                     04-7062



                                PETER R. KENT,

                                                   Claimant-Appellant,

                                        v.


              ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

                                                   Respondent-Appellee.



     Kathy A. Lieberman, Lieberman & Mark, of Washington, DC, argued for
claimant-appellant.

    Carolyn J. Craig, 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 Peter D. Keisler, Assistant Attorney General;
David M. Cohen, Director; and Patricia M. McCarthy, Assistant Director. Of counsel
was Jeanne E. Davidson, Deputy Director. Of counsel on the brief were Richard J.
Hipolit, Deputy Assistant General Counsel, and Ethan G. Kalett, Attorney, United
States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge William P. Greene, Jr.
 United States Court of Appeals for the Federal Circuit

                                        04-7062

                                    PETER R. KENT,

                                                       Claimant-Appellant,
                                            v.

                                ANTHONY J. PRINCIPI,
                              Secretary of Veterans Affairs,

                                                       Respondent-Appellee.

                             __________________________

                              DECIDED: December 1, 2004
                             __________________________


Before NEWMAN, LINN, and PROST, Circuit Judges.

LINN, Circuit Judge.

          Peter Kent (“Kent”) appeals from the judgment of the United States Court of

Appeals for Veterans Claims (“Veterans’ Court”) affirming the denial of his claim of clear

and unmistakable error in a January 1953 decision denying service connection for his

hearing loss. Kent v. Principi, No. 02-917 (Vet. App. Oct. 28, 2003). Because the

Veterans’ Court did not err in its interpretation of 38 U.S.C. § 1111 and because we

cannot conclude that the Veterans’ Court applied an incorrect standard of review, we

affirm.

                                   I. BACKGROUND

          Kent served on active duty with the Marine Corps from June 11, 1951 to

September 6, 1951. Upon discharge from the Marine Corps, Kent entered the Marine

Corps Reserve on active duty where he served until being honorably discharged on
December 1, 1951. Three separate medical examinations conducted on June 9, June

11, and September 3, 1951 indicated that Kent had no hearing loss. Kent underwent

several hearing evaluations in November 1951 resulting in his discharge for hearing loss

on December 1, 1951. During his evaluations, he admitted to the medical examiner that

he had been aware of at least some hearing loss in his left ear since age 14. The

examiner reported that deafness in the left ear existed prior to his entry into the Marine

Corps and was “not aggravated by the service.”         The Marine Corps subsequently

discharged Kent due to defective hearing in the left ear.

      Kent applied for compensation and a pension seeking service connection for

bilateral hearing loss in November 1952. The Regional Office denied the claim on

January 6, 1953, concluding that Kent’s “defective hearing pre-existed service and was

not aggravated thereby.” In August 1995, Kent filed a claim with his local Regional

Office seeking revision of the January 1953 Regional Office decision denying service

connection for his hearing loss. He argued that in 1953, the Regional Office failed to

consider the presumption of soundness in its adjudication of his claim and that such

failure constituted clear and unmistakable error (“CUE”).

      The Regional Office denied Kent’s CUE claim, holding that there was no clear

and unmistakable error in the 1953 decision. Subsequently, the Board of Veterans’

Appeals (“Board”) also denied the CUE claim. In re Kent, No. 93-05 430 (Bd. Vet. App.

July 23, 1999).   On appeal, the Veterans’ Court vacated the Board’s decision and

remanded for re-adjudication and a decision supported by an adequate statement of

reasons and bases. Kent v. Principi, No. 99-1450 (Vet. App. Feb. 21, 2002) (Order).

On remand, the Board again denied Kent’s claim, holding that there was no CUE in the




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January 1953 Regional Office decision. In re Kent, No. 93-05 430 (Bd. Vet. App. June

10, 2002).   The Board made clear that it was not conducting a de novo review of

whether the presumption of soundness was rebutted, but rather was deciding “whether,

given the evidence and the law as they appeared before the rating board at the time of

the 1953 rating decision, the rating board’s decision was clearly and unmistakably—

undebatably—erroneous.”      Id., slip op. at 10.   As such, the Board held that “the

conclusion [in 1953] that the veteran’s hearing loss preexisted his entry into service and

was not aggravated thereby is not undebatably erroneous, because it is supported by

clear and unmistakable medical evidence that the left ear hearing loss existed prior to

service and was not aggravated therein.” Id., slip op. at 9-10.

       The Veterans’ Court affirmed the Board’s decision. Kent v. Principi, No. 02-917

(Vet. App. Oct. 28, 2003). The Veterans’ Court noted that its standard of review for

CUE claims is “limited to whether the Board’s conclusion was ‘arbitrary and capricious,

an abuse of discretion, or not in accordance with the law.’” Id., slip op. at 2 (citation

omitted).

       Kent timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C.

§ 7292(c).

                                    II. DISCUSSION

                                 A. Standard of Review

       The scope of this court’s review of a decision of the Veterans’ Court is governed

by 38 U.S.C. § 7292(d). In accordance with the statute, this court “shall decide all

relevant questions of law, including interpreting constitutional and statutory provisions.”

38 U.S.C. § 7292(d)(1) (2000). This court reviews an interpretation of 38 U.S.C. § 1111




04-7062                                     3
by the Veterans’ Court de novo. Lane v. Principi, 339 F.3d 1331, 1338 (Fed. Cir. 2003).

However, “[e]xcept to the extent that an appeal under this chapter presents a

constitutional issue, the Court of Appeals 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.” 38 U.S.C. § 7292(d)(2) (2000).

                                       B. Analysis

                              1. Presumption of Soundness

       Kent argues that the Board and the Veterans’ Court misinterpreted 38 U.S.C.

§ 1111 because they failed to properly apply the presumption of soundness.              Kent

contends that the evidence relied upon by the Regional Office was legally insufficient to

constitute clear and unmistakable evidence of the preexistence of his hearing loss.

Under 38 U.S.C. § 1111, entrants to service are presumed to be in good health, absent

some evidence to the contrary upon entry:

              For the purposes of section 1110 of this title, every veteran shall be
       taken to have been in sound condition when examined, accepted, and
       enrolled for service, except as to defects, infirmities, or disorders noted at
       the time of the examination, acceptance, and enrollment, or where clear
       and unmistakable evidence demonstrates that the injury or disease
       existed before acceptance and enrollment and was not aggravated by
       such service.

38 U.S.C. § 1111 (2000). This presumption that service entrants are in sound condition

is referred to as the “presumption of soundness.”          As the statute specifies, the

presumption of soundness can only be rebutted by clear and unmistakable evidence.

Kent’s argument focuses on the meaning of clear and unmistakable evidence.

       According to Kent, where an entrance examination fails to reveal a defect or

disorder that is later detected, the presumption of soundness of section 1111 becomes

irrebuttable.   In Kent’s view, the irrebuttable presumption arises because any later-


04-7062                                      4
discovered evidence of the presence of a preexisting condition would be in conflict with

the entrance examination indicating that the condition was not preexisting. Kent argues

that in the face of such conflict, one cannot logically conclude that clear and

unmistakable evidence establishes either proposition. The government responds that

section 1111 contemplates precisely such conflicting evidence because rebuttal cannot

occur absent an entrance examination indicating no disability. Kent counters that under

his interpretation of section 1111, rebuttal of the presumption may occur if the defect

was not subject to testing or was “merely not noted at induction,” but cannot occur if the

condition was tested and found not to exist. Thus, Kent seeks to turn the clear and

unmistakable evidentiary standard into a per se rule barring rebuttal of the presumption

if an entrance examination indicates that a condition was tested and found not to exist

upon entry into service.

      We do not think that Kent’s interpretation is a proper reading of section 1111.

Kent’s reading of the statute would elevate an entrance examination to the level of

conclusive proof of the nonexistence of a condition. As the government points out,

section 1111 contemplates a conflict between the results of the entrance examination

indicating absence of a condition and other evidence suggesting preexistence of the

condition. The presumption would be meaningless if such conflicting evidence could not

be considered. Nothing in the language of section 1111 suggests that the results of an

entrance examination must be deemed conclusive. While Kent argues for a distinction

between entrance examinations affirmatively testing for a condition and those that do

not, section 1111 makes no such distinction, nor does the standard of proof of clear and

unmistakable evidence imply such a distinction. As we said in Harris v. West, 203 F.3d




04-7062                                     5
1347, 1349 (Fed. Cir. 2000), “All that [38 U.S.C. § 1111] requires is that the evidence,

whatever it may be, must lead, clearly and unmistakably, to the conclusion that the

injury or disease existed before the veteran entered the service.”           The clear and

unmistakable evidentiary standard applies to the burden to rebut the presumption, but

this standard does not require the absence of conflicting evidence. The presumption of

soundness is rebuttable even in the face of an entrance examination affirmatively

indicating that the condition in question was tested and found not to exist upon the

service member’s entry into service.

                      2. Standard of Review in the Veterans’ Court

       Kent argues that the question of whether there is clear and unmistakable

evidence to rebut the presumption of soundness is a question of law, subject to de novo

review by the Veterans’ Court. Thus, Kent concludes that the Veterans’ Court erred in

applying the “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law” standard of review of 38 U.S.C. § 7261(a)(3)(A). See Kent v.

Principi, No. 02-917, slip op. at 2 (Vet. App. Oct. 28, 2003). We agree that a question

as to the legal sufficiency of the evidence is a question of law. See Lennox v. Principi,

353 F.3d 941, 945 (Fed. Cir. 2003) (“So too if the BVA holds that, as a matter of law,

service connection is or is not established by particular facts so that ‘the relevant legal

principle [is] . . . given meaning through its application to the particular circumstances of

a case,’ the clearly erroneous standard does not apply.” (citation omitted) (alteration in

original)). We also agree that the Veterans’ Court is obliged to review questions of law

de novo. See Lane, 339 F.3d at 1339 (“Because interpretation of a statute or regulation

is a question of law, we hold that the Veterans Court should review de novo the Board’s




04-7062                                      6
interpretation of a regulation in the setting of a section 7111 CUE claim.” (citation

omitted)). However, as we have previously held, the “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law” standard of review employed by the

Veterans’ Court contemplates de novo review of questions of law. As we said in Lane

v. Principi, “In the first place, both section 7261(a)(1) (‘decide all relevant questions of

law’) and section 7261(a)(3)(A) (‘otherwise not in accordance with law’) necessarily

contemplate de novo review of a legal issue such as the Board’s interpretation of a

regulation.” Id. Indeed, in the present case, the Veterans’ Court expressly noted that

CUE may be shown where “the statutory or regulatory provisions extant at the time

were incorrectly applied.” Kent, No. 02-917, slip op. at 2.

       In affirming the denial of Kent’s CUE claim, the Veterans’ Court examined the

facts presented to the Regional Office in 1953 before concluding that Kent’s claim would

require a reweighing of the evidence and that such a reweighing was impermissible in a

CUE claim. In particular, the Veterans’ Court stated,

       His argument highlights one medical evaluation based at least in part on
       his purported statements, but fails to mention another contemporaneous
       medical examination, by a different examiner, that, without reference to
       any such statements, also found left-ear hearing loss existing prior to
       service and not aggravated thereby. To address Mr. Kent’s argument, the
       Court would have to engage in reevaluating each piece of evidence before
       the RO in January 1953 to determine how probative it is, in pursuit of
       reaching its own conclusion as to whether clear and unmistakable
       evidence was present to rebut the presumption of soundness.

Id. (citation omitted).   While the Veterans’ Court did not expressly address Kent’s

argument that the evidence presented was legally insufficient to constitute clear and

unmistakable evidence of preexistence of his hearing loss, the Veterans’ Court implicitly

rejected his interpretation of 38 U.S.C. § 1111 in its conclusion that to find clear and

unmistakable error, the Veterans’ Court would have to reweigh all of the evidence. If


04-7062                                      7
the Veterans’ Court had agreed with Kent’s interpretation of the statute, no reweighing

of the evidence would have been necessary, as Kent’s presumption of soundness

would have been irrebuttable. Although the Veterans’ Court did not expressly address

Kent’s challenge to the legal sufficiency of the evidence, we cannot say that the court

employed the wrong standard of review in evaluating Kent’s CUE claim.

                                     CONCLUSION

          Because Kent’s proffered interpretation of 38 U.S.C. § 1111 is incorrect and

because he showed no error in the Veterans’ Court’s review of his CUE claim, we

affirm.

                                       AFFIRMED




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