Case: 19-1519   Document: 36     Page: 1   Filed: 07/17/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                RICHARD D. SIMMONS,
                   Claimant-Appellant

                            v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                       2019-1519
                 ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 16-3039, Chief Judge Margaret C.
 Bartley, Judge Michael P. Allen, Senior Judge Robert N.
 Davis.
                 ______________________

                 Decided: July 17, 2020
                 ______________________

    KENNETH M. CARPENTER, Law Offices of Carpenter
 Chartered, Topeka, KS, argued for claimant-appellant.

    ASHLEY AKERS, Commercial Litigation Branch, Civil Di-
 vision, United States Department of Justice, Washington,
 DC, argued for respondent-appellee. Also represented by
 ETHAN P. DAVIS, TARA K. HOGAN, ROBERT EDWARD
 KIRSCHMAN, JR., BARBARA E. THOMAS; JONATHAN KRISCH,
 Y. KEN LEE, Office of General Counsel, United States De-
 partment of Veterans Affairs, Washington, DC.
Case: 19-1519     Document: 36     Page: 2    Filed: 07/17/2020




 2                                           SIMMONS   v. WILKIE



                   ______________________

     Before MOORE, CLEVENGER, and CHEN, Circuit Judges.
 CHEN, Circuit Judge.
      Richard D. Simmons appeals a decision from the U.S.
 Court of Appeals for Veterans Claims (Veterans Court), af-
 firming the decision of the Board of Veterans’ Appeals
 (Board) denying Mr. Simmons’s claim for compensation for
 a service-connected psychiatric disorder. The Veterans
 Court held that, even though the Board incorrectly stated
 that the presumptions of soundness and service connection
 did not apply to Mr. Simmons’s claim, that error was harm-
 less because it did not affect the basis of the Board’s denial
 of the claim. On appeal, Mr. Simmons argues that a failure
 to apply an evidentiary presumption is per se prejudicial.
 Because we agree with the Veterans Court that the failure
 to apply the presumptions of soundness and service connec-
 tion is not per se prejudicial, we affirm.
                        BACKGROUND
      We begin by discussing the pertinent background law.
     I. Presumptions of Soundness and Service Connection
     Veterans are entitled to compensation from the De-
 partment of Veterans Affairs (VA) if they develop a disabil-
 ity “resulting from personal injury suffered or disease
 contracted in line of duty, or for aggravation of a preexist-
 ing injury suffered or disease contracted in line of duty.”
 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime ser-
 vice). To establish a right to disability benefits, a veteran
 must show: “(1) the existence of a present disability; (2) in-
 service incurrence or aggravation of a disease or injury;
 and (3) a causal relationship between the present disability
 and the disease or injury incurred or aggravated during
 service.” Shedden v. Principi, 381 F.3d 1163, 1166–67
 (Fed. Cir. 2004).
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 SIMMONS   v. WILKIE                                        3



     As to the second requirement, whether a disability was
 incurred or aggravated during service, Congress provided
 for a special evidentiary rule known as the presumption of
 soundness, set forth in 38 U.S.C. § 1111 (wartime service):
    For the purposes of section 1110 of this title, every
    veteran shall be taken to have been in sound con-
    dition when examined, accepted, and enrolled for
    service, except as to defects, infirmities, or disor-
    ders noted at the time of the examination, ac-
    ceptance, and enrollment, or where clear and
    unmistakable evidence demonstrates that the in-
    jury or disease existed before acceptance and en-
    rollment and was not aggravated by such service.
 See also 38 U.S.C. § 1132 (peacetime service). When no
 preexisting disorder is noted in the veteran’s paperwork
 upon entry into service, any medical problem arising dur-
 ing service is presumed to have occurred during service.
 Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009).
     Another statutory presumption relevant to the second
 requirement is set forth in 38 U.S.C. § 105(a), which cre-
 ates a presumption that an injury or disease incurred by a
 veteran during active service was incurred in the line of
 duty and not caused by any veteran misconduct. 38 U.S.C.
 § 105(a) states:
    [a]n injury or disease incurred during active mili-
    tary, naval, or air service will be deemed to have
    been incurred in line of duty and not the result of
    the veterans own misconduct when the person on
    whose account benefits are claimed was, at the
    time the injury was suffered or disease contracted,
    in active military, naval, or air service, whether on
    active duty or on authorized leave, unless such in-
    jury or disease was a result of the persons own will-
    ful misconduct or abuse of alcohol or drugs.
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 4                                           SIMMONS   v. WILKIE



 Neither the presumption of soundness nor the presumption
 of service connection, however, is relevant to the third re-
 quirement, in which the veteran must show that the in-ser-
 vice injury or disease is causally related to the veteran’s
 current disability. Holton, 557 F.3d at 1367.
                       II. Mr. Simmons
     Mr. Simmons served in the U.S. Navy from 1968 to
 January 1970. Throughout his time in service, Mr. Sim-
 mons experienced feelings of depression and homesickness.
 In April 1969, a VA physician diagnosed Mr. Simmons with
 a laceration of the left wrist and situational depression but
 no permanent disability. In December 1969, another VA
 physician diagnosed him with immature personality disor-
 der and recommended he be discharged. Mr. Simmons was
 discharged the next month.
      On September 13, 1972, Mr. Simmons submitted a
 claim for a non-service-connected pension for polyarthritis.
 In December 1972, the VA awarded Mr. Simmons the re-
 quested non-service-connected pension and rated the poly-
 arthritis claim as similar to rheumatoid arthritis. In June
 1974, Mr. Simmons submitted a claim for additional com-
 pensation, asserting that his arthritis was service con-
 nected and that he also had a nervous condition that
 justified compensation. J.A. 49. The VA conducted a med-
 ical examination, at which Mr. Simmons complained of se-
 vere joint pain and nervousness. The VA diagnosed
 Mr. Simmons with arthritis and a nervous condition with
 depressive features as a result of said arthritis. J.A. 50. In
 September 1974, the VA regional office (RO) denied
 Mr. Simmons’s claim for service connection for arthritis
 and a nervous condition with depressive features; the VA
 found no evidence that the arthritis stemmed from
 Mr. Simmons’s service and that his nervous condition was
 a by-product of his non-service-connected arthritis and not
 causally related to any of his diagnoses in service. J.A. 49.
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 SIMMONS   v. WILKIE                                        5



 Because Mr. Simmons never perfected an appeal to the
 Board, the RO’s decision became final.
      Over the subsequent years, Mr. Simmons at various
 points sought to re-open his claims for arthritis and a nerv-
 ous condition, which the VA denied each time. On Decem-
 ber 21, 2005, after having received a total disability rating
 for an unrelated asbestosis-based claim, Mr. Simmons filed
 a claim that there was clear and unmistakable error (CUE)
 in the RO’s 1974 rating decision, but only with respect to
 the denial of service connection for his nervous condition.
 There, he argued that if the VA had considered the pre-
 sumptions of soundness and service connection set forth in
 38 U.S.C. §§ 105(a) and 1111, respectively, he would have
 been awarded disability compensation for his nervous con-
 dition.
     In 2016, the Board denied Mr. Simmons’s request for
 revision of the RO’s 1974 decision because it was not a
 product of CUE, finding instead that Mr. Simmons’s cur-
 rent psychiatric disorder was due to his non-service-con-
 nected arthritis and not related to any mental health
 condition suffered in service. Moreover, the Board found
 that the presumptions of service and soundness in
 38 U.S.C. §§ 105(a) and 1111 did not apply.
     Mr. Simmons appealed the Board’s failure to apply the
 two presumptions to the Veterans Court. In September
 2018, the Veterans Court affirmed the Board’s decision and
 found that although the Board erred in analyzing the two
 statutory presumptions when it found no CUE in the RO’s
 1974 decision, that error was harmless because Mr. Sim-
 mons’s current disability was not causally related to his in-
 service condition. Simmons v. Wilkie, 30 Vet. App. 267
 (2018).    The Veterans Court explained that, under
 38 U.S.C. § 7261(b)(2), it is “statutorily required to con-
 sider whether those errors prejudiced him.” Id. at 2770. It
 then ruled that the error in this case “is not an inherently
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 6                                          SIMMONS   v. WILKIE



 prejudicial error, although it may nevertheless be prejudi-
 cial in a particular case.” Id. at 283.
    Mr. Simmons timely appealed to our court in January
 2019. We have jurisdiction pursuant to 38 U.S.C. § 7292(c).
                        DISCUSSION
     We review legal determinations of the Veterans Court
 de novo. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir.
 1991).
     As previously mentioned, the Veterans Court deter-
 mined that the Board’s failure to apply the two presump-
 tions, although incorrect, was harmless because
 Mr. Simmons failed to prove the third requirement neces-
 sary for the receipt of benefits—the so-called “nexus” re-
 quirement. See Holton, 557 F.3d at 1366. Mr. Simmons
 asks us to overturn the Veterans Court’s decision and ap-
 ply a per se rule of prejudice when either the RO or the
 Board fails to apply the two presumptions. For the reasons
 that follow, we decline to adopt such a rigid, categorical
 rule.
      The Supreme Court’s analysis in Shinseki v. Sanders
 guides our ruling in this instance. 556 U.S. 396 (2009). In
 Sanders, the Supreme Court rejected as not “consistent
 with the statutory demand” this court’s prior rule of a pre-
 sumption of prejudice whenever the VA failed to provide a
 claimant the notice required by 38 U.S.C. § 5103(a). Id. at
 406. Instead, under 38 U.S.C. § 7261(b)(2), the Veterans
 Court must “take due account of the rule of prejudicial er-
 ror,” which “requires the Veterans Court to apply the same
 kind of harmless-error rule that courts ordinarily apply in
 civil cases.” Id. (internal quotations omitted).
     In rejecting a per se presumption of prejudice, the Su-
 preme Court explained that this court’s per se rule “dif-
 fer[ed] significantly from the approach courts normally
 take in ordinary civil cases” in three ways. Id. at 407.
 First, such a rule would require the reviewing court to find
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 SIMMONS   v. WILKIE                                          7



 prejudice even if that court conscientiously determined
 that the error had not affected the outcome. Id. Second,
 the rule placed “an unreasonable evidentiary burden upon
 the VA.” Id. at 408–09. Third, a rigid rule requiring the
 VA to explain why the error is harmless would conflict with
 Supreme Court precedent placing the burden of establish-
 ing prejudice on the party that seeks to have a judgment
 set aside. Id. at 409–10. Thus, when determining whether
 an error affected the outcome of the case or was harmless,
 the Court has “warned against courts’ determining
 whether an error is harmless through the use of mandatory
 presumptions and rigid rules rather than case-specific ap-
 plications of judgment, based upon examination of the rec-
 ord.” Id. at 407.
      Mr. Simmons’s proposed rigid, per se rule is clearly
 foreclosed by § 7261(b)(2) and the reasoning in Sanders.
 Contrary to Mr. Simmons’s view, nothing in Sanders’s dis-
 approval of per se rules for harmless error analysis sug-
 gests that it is constrained to the context of “notice errors.”
 Likewise, § 7261(b)(2)’s mandate for the Veterans Court to
 “take due account of the rule of prejudicial error” applies to
 all cases under the jurisdiction of the Veterans Court and
 is not limited to notice errors. Mr. Simmons’s proposed
 rule also presents the same three problems the Supreme
 Court identified in Sanders. We therefore hold that a per
 se rule of prejudice is not appropriate here, for the same
 reasons that it was not appropriate in Sanders.
      Such a per se rule of prejudice when the RO or Board
 fails to apply the two presumptions also would be incon-
 sistent with our case law. We have held that the presump-
 tions of soundness and service connection are not relevant
 to the third requirement for establishing entitlement to
 disability benefits—the nexus requirement. Dye v. Mans-
 field, 504 F.3d 1289, 1292 (Fed. Cir. 2007) (stating that the
 presumption of soundness cannot fill the gap where the
 veteran failed to show a causal relationship between his in-
 service and post-service medical problems); Holton, 557
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 8                                            SIMMONS   v. WILKIE



 F.3d at 1367 (holding that neither the presumption of
 soundness nor service connection are relevant to the ques-
 tion of whether the in-service injury or disease is causally
 related to the veteran’s current disability). A per se rule of
 prejudice for failure to apply the two presumptions—which
 are relevant to the second requirement and not the third,
 nexus requirement—would also undo any proper VA find-
 ing that the claimant had failed to establish a causal nexus.
 Such an expansion of the effect of these two statutory pre-
 sumptions would be inconsistent with Dye and Holton.
      Accordingly, we decline to alter the Veterans Court’s
 harmless error framework by adding a per se rule of preju-
 dice with respect to the presumptions of soundness and ser-
 vice connection. Instead, as the Supreme Court has
 instructed, the Veterans Court should apply the “same
 kind of harmless-error rule that courts ordinarily apply in
 civil cases.” Sanders, 556 U.S. at 406 (internal quotations
 omitted). Because that is the rule that the Veterans Court
 applied here when it evaluated whether Mr. Simmons had
 been prejudiced by the Board’s failure to apply the two pre-
 sumptions in light of the facts and circumstances of the
 particular case, the Veterans Court correctly followed
 § 7261(b)(2).
                         CONCLUSION
     We have considered Mr. Simmons’s remaining argu-
 ments and find them unpersuasive. Accordingly, the ap-
 peal from the final judgment of the Veterans Court is
                         AFFIRMED
                            COSTS
     No costs.
