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United States Court of Appeals
for the Federal Circuit
RICHARD D. SIMMONS,
ROBERT WILKIE, SECRETARY OF VETERANS
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.
Decided: July 17, 2020
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
ASHLEY AKERS, Commercial Litigation Branch, Civil Division,
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 Department
of Veterans Affairs, Washington, DC.
Case: 19-1519 Document: 36 Page: 1 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), affirming
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 harmless
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 connection
is not per se prejudicial, we affirm.
We begin by discussing the pertinent background law.
I. Presumptions of Soundness and Service Connection
Veterans are entitled to compensation from the Department
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FedCir; Simmons v. Wilkie, No. 2019-1519(Decided: July 17, 2020); failure to apply the presumptions of soundness and service connection is not per se prejudicial; 38 U.S.C. § 1111; Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); 38 U.S.C. § 105(a); Neither the presumption of soundness nor the presumption of service connection, however, is relevant to the third requirement, in which the veteran must show that the in-service injury or disease is causally related to the veteran's current disability. Holton, 557 F.3d at 1367;
United States Court of Appealsfor the Federal Circuit RICHARD D. SIMMONS,Claimant-Appellantv.ROBERT WILKIE, SECRETARY OF VETERANSAFFAIRS,Respondent-Appellee 2019-1519 Appeal from the United States Court of Appeals forVeterans 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.