Justice Cardozo once observed, “The work of a judge is in one sense enduring and in another ephemeral. . . . In the endless process of testing and retesting, there is a constant rejection of the dross and a constant retention of whatever is pure and sound and fine.” B. Cardozo, The Nature of the Judicial Process, 178-79 (1921). I have come to accept that the Federal Circuit’s (Fed. Cir.) February 21, 2013 opinion in Walker v. Shinseki embodies Justice Cardozo’s observation and clarifies the relationship between 38 C.F.R. § 3.303(a) and (b). It also provides an opportunity to explore service connection under 38 C.F.R. § 3.303(b) (commonly called “chronicity”) and hypothesize as to the retroactive application of Walker v. Shinseki.
Under 38 C.F.R. § 3.303(b), a veteran can establish service connection for a chronic disease that occurred in service (or within the presumptive period under 38 C.F.R. § 3.307), “so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.” Walker v. Shinseki clarified that 38 C.F.R. § 3.303(b), only applies to those diseases listed in 38 C.F.R. § 3.309(a). Currently, there are approximately forty (40) diseases listed in § 3.309(a). Therefore, if a veteran can demonstrate a current diagnosis as well as development of one of the diseases listed in § 3.309(a) during service or within the presumptive period listed in § 3.307, then the veteran can establish service connection even if there is no “nexus” medical evidence.
Further, Walker v. Shinseki clarified the evidentiary burden necessary for establishing that a chronic disease listed in 38 C.F.R. § 3.309(a), either occurred in service or within the presumptive period: (1) that occurred in service (“‘to be shown in service, the disease must be established and the diagnosis not be subject to legitimate question”); and (2) within the presumptive period under 38 C.F.R. § 3.307(a) (“if the chronic disease was ‘shown’ (i.e. well diagnosed beyond question)”). Therefore, in order to establish service connection under 38 C.F.R. § 3.303(b), the chronic disease must have been “well diagnosed” within service or within the presumptive period.
Ultimately, the courts will decide how Walker will apply to pending claims and those already decided (commonly called “retroactive application”). However, based upon precedent, a fair interpretation may be that the holding will not apply to claims where service connection has been already established. See Berger v. Brown, 10 Vet. App. 166, 170 (1997) (“opinions from this Court that formulate new interpretations of the law subsequent to an RO decision cannot be the basis of a valid [clear and unmistakable error (CUE) ] claim”). However, for pending claims where service connection has not been established, Walker’s more limited interpretation of 38 C.F.R. § 3.303(b) will apply. See Brewer v. West, 11 Vet. App. 228, 231–35 (1998) (the Court rejected the argument that the retroactive applicability of a “judicial decision issued during the course of an appeal” should be prohibited simply because the outcome may be unfavorable to the appellant).
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