 United States Court of Appeals for the Federal Circuit

                                      2007-7177


                                 JAMES H. HOGAN,

                                                            Claimant-Appellant,

                                          v.


                JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                            Respondent-Appellee.


      Janet R. Carter, The Veterans Law Group, of La Jolla, California, argued for
claimant-appellant. With her on the brief was Mark R. Lippman.

       Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Gregory G. Katsas, Acting Assistant Attorney Genera, Jeanne E.
Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel were
David J. Barrans, Deputy Assistant General Counsel, and Y. Ken Lee, Attorney, Office
of the General Counsel, United States Department of Veterans Affairs, of Washington,
DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge William A. Moorman
 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

                                     2007-7177



                                 JAMES H. HOGAN,

                                                           Claimant-Appellant,

                                          v.

                JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                           Respondent-Appellee.


Appeal from the United States Court of Appeals for Veterans Claims in 04-1336, Judge
William A. Moorman.

                             ______________________

                            DECIDED: October 9, 2008
                            _______________________


Before MAYER, LINN, and PROST, Circuit Judges.

MAYER, Circuit Judge.

      James H. Hogan appeals a judgment of the United States Court of Appeals for

Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’

Appeals that denied his claim for service connection for generalized anxiety disorder.

Hogan v. Nicholson, No. 04-1336 (Ct. Vet. App. Jan. 30, 2007). We affirm.

                                          I.

      Hogan served on active duty in the military from August 1976 to July 1982, from

September 1982 to September 1986, and from May 1987 to June 1990. In August
1997, he filed a claim with a Veterans Affairs regional office (“RO”) seeking benefits for

“chronic stress/anxiety disorder.” In June 1999, the claim was denied.

       In February 2000, the RO received an undated letter from Marta McKay, a

licensed professional counselor, who had seen Hogan for counseling. McKay stated:

       Mr. Hogan presented a diagnostic picture of chronic anxiety. Although I
       cannot prove or state definitively that [Hogan’s] anxiety started in the
       1980’s or that it was military connected, it is likely that his anxiety disorder
       has been long-standing for many years and just as likely that he suffered
       from anxiety during his time in the military.

       In July 2001, the board remanded Hogan’s claim to the RO for further

neuropsychiatric examinations. Subsequently, Edith Dalton, a Veterans Administration

psychiatric examiner, diagnosed Hogan with “generalized anxiety disorder.”                Dalton

stated that while she believed that Hogan’s anxiety started during his “traumatic”

childhood, events occurring in the military had “exacerbated” his condition.

       In December 2002, the board denied Hogan’s claim for service-connected

benefits for generalized anxiety disorder. Hogan then appealed to the Veterans Court.

The parties subsequently submitted a joint motion stating that the board had provided

inadequate support for its conclusion that Hogan’s anxiety disorder was not incurred in

service. Accordingly, the Veterans Court remanded the case to the board for further

consideration.

       On remand, the board again denied Hogan’s claim. It acknowledged that Dalton,

the Veterans Administration psychiatric examiner, had stated that Hogan’s military

experience had “exacerbated” his anxiety disorder. The board found, however, that

since there had been no showing of a permanent increase in his generalized anxiety

disorder as a result of his military service, Dalton’s opinion was insufficient to establish




2007-7177                                     2
service connection. 1 The board noted, moreover, that in a 1986 medical examination

for separation from service and in a 1991 report of medical history, Hogan denied

having “depression, excessive worry, or other nervous trouble.”

       On appeal, the Veterans Court affirmed. The court observed that Hogan’s April

1982, September 1986, and December 1991 separation examinations indicated that his

psychiatric condition was “normal.” Hogan, No. 04-1336, slip. op. at 5. Moreover, “the

earliest documentation of psychiatric symptoms and of a diagnosis of generalized

anxiety disorder was made several years after [Hogan’s] separation from service.” Id.

(citations and internal quotation marks omitted).          In the court’s view, McKay’s

“equivocal” statements regarding the etiology of Hogan’s generalized anxiety disorder

had “no probative value” and could be considered “non-evidence” on the issue of

whether Hogan had established a nexus between his military service and his anxiety

disorder. Id. at 6.

                                             II.

       In reviewing a decision of the Veterans Court, this court is vested with authority

to “decide all relevant questions of law, including interpreting constitutional and statutory

provisions.” 38 U.S.C. § 7292(d)(1). We review statutory and regulatory interpretation

de novo. Buchanan v. Nicholson, 451 F.3d 1331, 1334 (Fed. Cir. 2006); Dambach v.

Gober, 223 F.3d 1376, 1380 (Fed. Cir. 2000); Prenzler v. Derwinski, 928 F.2d 392, 393

(Fed. Cir. 1991).




       1
        On appeal, Hogan does not challenge the board’s evaluation of Dalton’s
opinion. Instead, Hogan challenges only the evaluation of McKay’s opinion by the
board and the Veterans Court.


2007-7177                                    3
       Hogan argues that the Veterans Court incorrectly interpreted 38 U.S.C.

§ 5107(a) 2 by adopting a rule that a medical opinion constitutes credible evidence only

when it is stated “in definitive terms” or “with absolute medical certainty.” Specifically,

he asserts that the court erroneously determined that the opinion of his therapist,

McKay, had no probative value because McKay was unable to state definitively when

his generalized anxiety disorder began.

       We do not agree with Hogan’s interpretation of the Veterans Court’s decision.

Contrary to Hogan’s assertions, the court did not adopt—either implicitly or explicitly—a

rule that service connection can be established only when a medical professional can

state definitively or with certainty when a particular disorder or condition began.

Instead, the board fully assessed McKay’s opinion, but found it insufficient to establish

service condition given that: (1) McKay did not state that it was likely that Hogan’s

anxiety disorder began during or as a result of his military service, and (2) there was

substantial evidence in the record showing that Hogan’s anxiety disorder did not begin

until after he left the military.

       This country has long recognized its obligation to provide for those who continue

to suffer from a disease or disability incurred while in active military service. See Boggs

v. Peake, 520 F.3d 1330, 1334 (Fed. Cir. 2008) (“In 1957, Congress consolidated into a

single act the subject matter of the extensive body of existing legislation authorizing and

governing the payment of compensation for service-connected disability or death to

persons who served in the military, naval, or air force of the United States.” (citations

and internal quotations omitted)). To establish a right to benefits, a veteran must show

       2
         In pertinent part, 38 U.S.C. § 5107(a) provides: “Except as otherwise provided
by law, a claimant has the responsibility to present and support a claim for benefits.”


2007-7177                                   4
that a current disability is “service connected,” i.e., that there is a medical nexus

between the disability and an “in-service precipitating disease, injury or event.”

Disabled Am. Veterans v. Sec’y of Veterans Affairs, 419 F.3d 1317, 1318 (Fed. Cir.

2005).

         We agree with Hogan that the opinion of the Veterans Court contains some

troubling language: the court should not have referred to McKay’s letter as “non-

evidence.” Clearly, an opinion from a licensed counselor regarding the etiology of a

claimant’s psychological disorder must be considered as “evidence” of whether the

disorder was incurred in service. See 38 C.F.R. § 3.159(a)(1) (“Competent medical

evidence means evidence provided by a person who is qualified through education,

training, or experience to offer medical diagnoses, statements, or opinions.”). After

reviewing the record, however, we conclude that any error by the court was one of

semantics, not substance. See Shedden v. Principi, 381 F.3d 1163, 1168 (Fed. Cir.

2004). A mature reading of the court’s opinion makes clear that when the court stated

that McKay’s opinion was “non-evidence,” it meant that because the opinion did not

state that Hogan’s anxiety disorder was likely incurred during or as a result of his

military service—and there was substantial evidence showing that his disorder did not

begin until after he left the military—it was insufficient to establish service connection.

See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (The board has “authority

to discount the weight and probity of evidence in the light of its own inherent

characteristics and its relationship to other items of evidence.”); see also Jandreau v.

Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (“[T]he Board retains discretion to

make credibility determinations and otherwise weigh the evidence submitted . . . .”).




2007-7177                                   5
       A determination regarding service connection requires consideration of “all

pertinent medical and lay evidence,” 38 C.F.R. § 3.303(a) (emphasis added), including

medical opinions that do not state definitively when a particular disorder or condition

began. See Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008) (“‘[D]eterminations

as to service connection will be based on review of the entire evidence of record.’”

(quoting 38 C.F.R. § 3.303(a)) (emphasis added)); Capellan v. Peake, 539 F.3d 1373,

1382 (Fed. Cir. 2008) (The board must make decisions regarding service connection

based upon consideration of “all evidence submitted by the claimant.” (emphasis

added)). Contrary to Hogan’s assertions, the Veterans Court did not adopt a rule that a

medical opinion lacks credibility if it does not state definitively or with “absolute medical

certainty” when a particular disorder or condition began. We therefore affirm.

                                           AFFIRMED

                                             COSTS

       No costs.




2007-7177                                    6
