Stewart v. McDonald , 641 F. App'x 979 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PATRICIA D. STEWART,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7110
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2602, Judge William Green-
berg.
______________________
Decided: February 22, 2016
______________________
AMY F. ODOM, National Veterans Legal Services Pro-
gram, Washington, DC, argued for claimant-appellant.
Also represented by BARTON F. STICHMAN, PATRICK A.
BERKSHIRE.
ELIZABETH ANNE SPECK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by BENJAMIN C. MIZER, ROBERT E.
2 STEWART v. MCDONALD
KIRSCHMAN, JR., ALLISON KIDD-MILLER; DAVID J.
BARRANS, BRIAN D. GRIFFIN, Office of General Counsel,
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
Before O’MALLEY, PLAGER, and BRYSON, Circuit Judges.
Opinion for the court filed by Circuit Judge PLAGER.
Dissenting opinion filed by Circuit Judge BRYSON.
PLAGER, Circuit Judge.
This is a veterans case. Patricia D. Stewart appeals
the judgment of the United States Court of Appeals for
Veterans Claims (“Veterans Court”). Stewart sought
disability benefits based on service connection for “stom-
ach problems,” including Irritable Bowel Syndrome
(“IBS”). The Department of Veterans Affairs (“VA”)
denied benefits. The Board of Veterans’ Appeals (“Board”)
affirmed the denial. The Veterans Court vacated the
Board’s determinations regarding certain aspects of its
decision, but left unchanged the Board’s determination
that the Board need not adjudicate entitlement to benefits
for IBS. Because this latter determination by the Veter-
ans Court constituted legal error, we reverse that part of
the Veterans Court’s judgment.
BACKGROUND
Proceedings Before Veterans Affairs Regional Offices
Stewart served in the Army from January 1988 to
November 1994, including service in the Persian Gulf
War. In September 2005, Stewart requested service-
connected disability benefits for, inter alia, acid reflux
and stomach problems. In June 2006, the VA Regional
Office (“RO”) in Muskogee, Oklahoma issued a decision
denying service connection for acid reflux and stomach
problems. The RO had “no medical evidence showing this
STEWART v. MCDONALD 3
condition [(referring jointly to acid reflux and stomach
problems)] began in or was made worse during [Stewart’s]
military service. [Stewart’s] service medical records do
not show treatment for this condition.” J.A. 64.
In November 2006, Stewart asked the VA to reconsid-
er her claim. 1 In October 2007, the RO reopened the
matter, but subsequently confirmed the prior denial of
service connection. The RO stated:
[T]he evidence continues to show this condition
was not incurred in or aggravated by military ser-
vice. Service medical records are negative showing
treatment or diagnosis of acid reflux in service.
VA medical records dated March 2007, show a di-
agnosis of gastroesophageal reflux disease
(GERD) but we have no link to relate this condi-
tion to service.
J.A. 74.
As part of its decision, the RO listed evidence that in-
cluded “[t]reatment records VAMC [(VA Medical Center)],
Salisbury dated March 2007 to August 2007.” J.A. 73.
One such medical record from May 2007 included a note
of “?IBS.. see pcc for f/u,” presumably indicating possible
IBS and that a follow-up was desirable. See J.A. 79.
In March 2008, Stewart submitted a notice of disa-
greement (“NOD”) to the October 2007 decision. In July
2008, Stewart asked the VA to reopen her claim and, inter
alia, “add” IBS. In July 2008, after Stewart’s request to
reopen and in response to her NOD, the VA issued a
1 Stewart argues her request to reconsider should
have been construed as a notice of disagreement (“NOD”),
but she states this court “need not reach this issue as it is
not dispositive to the issues currently before the [c]ourt.”
Appellant’s Br. at 11, n.1.
4 STEWART v. MCDONALD
statement of the case (“SOC”) continuing the denial of
service connection of acid reflux and stomach problems.
On August 7, 2008, the Board received Stewart’s sub-
stantive appeal of the RO’s October 2007 decision. On
August 18, 2008, the VA made a “develop note” that “IBS
[is] taken as [a] new condition (not part of GERD with
stomach problems per Keith Cunningham, RVSR [(rating
veterans service representative)].” J.A. 99. Also on
August 18, 2008, the RO in Winston-Salem, North Caroli-
na sent Stewart a letter stating that the VA was working
on her application for service-connection for IBS. In
February 2009, the RO in Columbia, South Carolina
denied Stewart entitlement to service connection for IBS.
In November 2009, the VA requested a medical exam-
ination for Stewart and specifically asked for an “etiology
of stomach problems [and] acid reflux.” J.A. 118. In that
request, the VA noted that the case was over one year old
based on the NOD. On January 14, 2010, Stewart un-
derwent a VA medical examination and was diagnosed
with IBS.
In August 2010, the VA received private medical rec-
ords that included a February 2005 treatment record with
a physician note that Stewart has “what sounds like” IBS.
J.A. 128. Also in August 2010, Stewart requested service-
connected disability benefits for, inter alia, IBS. In No-
vember 2010, the Winston-Salem RO informed Stewart
that the VA was working on the IBS claim, but that
Stewart was previously denied service connection for IBS
in the February 2009 decision and the appeal period had
expired. The VA informed Stewart that new and material
evidence was required for the VA to reopen the claim.
In March 2011, an RO issued a supplemental SOC
continuing to deny service connection for acid reflux and
stomach problems. The RO listed the following evidence:
VA examination, WSOPC dated January 14, 2010; treat-
ment reports from the VA Medical Center in Salisbury
STEWART v. MCDONALD 5
dated March 22, 2007 to November 26, 2007; and Presby-
terian Healthcare Associates (Charlotte Internal Medi-
cine) dated June 21, 2004 to December 8, 2009.
In May 2011, an RO issued a decision determining
that there was no new and material evidence submitted to
reopen the previously denied claim for service connection
for IBS.
In October 2011, Stewart sought increased compensa-
tion based on unemployability and listed IBS and acid-
reflux as service-connected disabilities. In February
2012, an RO sent Stewart a letter stating the VA was
working on her claim for IBS, but could take no action on
her claims for acid reflux and stomach problems since
those issues were on appeal.
Proceedings Before the Board
In its May 2012 decision, the Board reopened Stew-
art’s claim of entitlement to service connection for acid
reflux and stomach problems, but denied service connec-
tion “for a gastroesophageal disorder, to include GERD as
due to an undiagnosed illness.” J.A. 42. Regarding IBS,
the Board stated:
The Board acknowledges that, with respect to the
Veteran’s claim for service connection for acid re-
flux and stomach symptoms to include as due to
an undiagnosed illness, in Clemons v. Shinseki, 23
Vet. App. 1 (2009), the [Veterans Court] held that
claims of entitlement to service connection for [sic]
also encompass claims for service connection for
all gastroesophageal disabilities afflicting a Vet-
eran based on a review of the medical evidence. In
this case, the record also reflects a diagnosis of
GERD and IBS. However, regarding the Veteran’s
diagnosed IBS, the Board notes that Veteran
submitted a specific claim for IBS in July 2008,
which was denied by the RO in a February 2009
6 STEWART v. MCDONALD
rating decision. The Veteran did not appeal that
decision. Accordingly, the claim was [sic] been re-
characterized as set forth on the title page of this
decision.
The Board also notes that the Veteran submitted
claims for service connection for . . . acid reflux,
[and] stomach problems . . . which were denied by
the RO in June 2006. In an October 2007 rating
decision the RO adjudicated the above claim based
on whether new and material evidence had been
received to reopen the previously denied claims
for service connection. The Board notes that a new
theory of causation for the same disease or injury
that was the subject of a previously denied claim
cannot be the basis of a new claim under 38
U.S.C.A. § 7104(b). Boggs v. Peake, 520 F.3d 1330,
1336 (Fed. Cir. 2008).
J.A. 22–23.
The title page of the Board’s decision—referenced
above—lists several “issues” including “[w]hether new
and material evidence has been received to reopen a claim
of entitlement to service connection for ‘stomach problems’
and acid reflux” and “[e]ntitlement to service connection
for gastroesophagial disorder to include gastroesophageal
reflux disease (GERD) as due to an undiagnosed illness.”
J.A. 21.
The Board further stated:
The competent evidence indicates, however, that
the Veteran’s stomach symptoms have been at-
tributed to irritable bowel syndrome (IBS). Specif-
ically, at her January 2010 VA examination, when
describing her stomach symptoms, the Veteran
reported having frequent stools, bowel urgency,
severe cramping, excessive flatulence, and bloat-
ing. In relation to these reported symptoms, the
STEWART v. MCDONALD 7
VA examiner provided a diagnosis of IBS. Addi-
tionally, the January 2010 VA examiner ad-
dressed the Veteran’s symptoms associated with
her complaints of acid reflux, including nausea,
regurgitation, infrequent heartburn, and infre-
quent indigestion. The examiner concluded that
these symptoms were attributed to a diagnosis of
GERD. As such, both the Veteran’s reported
stomach symptoms and acid reflux have been at-
tributed to know[n] clinical diagnoses of IBS and
GERD, respectively, which are not related to her
active service. As noted above, in July 2008, Vet-
eran submitted a separate claim for IBS, which
was denied in a February 2009 rating decision.
The Veteran did not appeal that decision. There-
fore, the evidence shows that the Veteran’s GERD
or associated stomach symptoms are not due to an
undiagnosed illness because her complaints have
been attributed to known clinical diagnosis.
J.A. 35.
Stewart appealed the Board’s decision to the Veterans
Court. The court issued a decision, but withdrew that
decision after granting Stewart’s motion for reconsidera-
tion. The court then issued a new decision and found “no
error in the Board’s treatment of the issue of IBS.” J.A. 5.
The court vacated the portion of the Board’s decision
denying entitlement to benefits based on service connec-
tion for acid reflux and stomach problems and remanded
the matters on appeal for development and readjudica-
tion. This was because, inter alia, the court found that
the Board failed to provide an adequate statement of
reasons or bases for its denial of service connection for
acid reflux and stomach problems.
Regarding IBS, the court stated:
The appellant’s claim for “[IBS] due to environ-
mental hazards in the Gulf War” was adjudicated
8 STEWART v. MCDONALD
in a February 2009 rating decision that denied en-
titlement to benefits based on service connection
because no clinical diagnosis of IBS had been
made and no nexus between IBS and service had
been established. R. at 376. VA was permitted to
adjudicate the matter of service connection for
IBS separately from the appellant’s original
“stomach problems” claim. See Tyrues v. Shinseki,
23 Vet. App. 166, 177–78 (2009) (en banc) (VA
may bifurcate a claim and adjudicate it in sepa-
rate pieces). To the extent that some of the appel-
lant’s stomach symptoms–“frequent stools, bowel
urgency, severe cramping, excessive flatulence,
and bloating” (R. at 17)–were diagnosed as IBS by
the January 2010 VA examiner, the Board did not
err in recharacterizing the “stomach problems”
claim to exclude those symptoms and encompass
only the previously unadjudicated symptoms at-
tributed to GERD by the examiner (R. at 363).
The examiner’s clinical diagnosis of IBS may be
relevant evidence sufficient to reopen the appel-
lant’s separate IBS claim, in light of the RO’s find-
ing in February 2009 that the pertinent medical
records “offer[] no clinical diagnosis of [IBS] nor
do these records relate [the] condition to your ac-
tive military service.” R. at 376; see 38 U.S.C.
§ 5108. However, in the Board decision at issue
here, the Board was not required to readjudicate
entitlement based on the IBS-specific stomach
symptoms that were addressed in a separate, un-
appealed RO decision.
J.A. 5–6.
Stewart appealed to this court. We have jurisdiction
pursuant to 38 U.S.C. § 7292.
STEWART v. MCDONALD 9
DISCUSSION
1.
Our review of Veterans Court decisions is limited by
statute. See 38 U.S.C. § 7292. We possess “exclusive
jurisdiction to review and decide any challenge to the
validity of any statute or regulation or any interpretation
thereof . . . and to interpret constitutional and statutory
provisions, to the extent presented and necessary to a
decision.” Id. § 7292(c). We must decide all relevant
questions of law and hold unlawful and set aside regula-
tions or interpretations thereof—besides factual determi-
nations—that were relied upon in the Veterans Court
decision and are “(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (B)
contrary to constitutional right, power, privilege, or
immunity; (C) in excess of statutory jurisdiction, authori-
ty, or limitations, or in violation of a statutory right; or
(D) without observance of procedure required by law.” Id.
§ 7292(d)(1). We may not review a challenge to a factual
determination, or to a law or regulation as applied to the
facts—unless a constitutional issue is presented. Id.
§ 7292(d)(2). We review Veterans Court decisions regard-
ing issues of law without deference. Ellington v. Peake,
541 F.3d 1364, 1368 (Fed. Cir. 2008).
2.
Unlike our usual non-precedential opinions, issued
primarily for the benefit of the parties and in which the
facts are only briefly stated, we have set forth the history
of the case at length because it is necessary to an under-
standing of the outcome. The above description of this
veteran’s travails through the VA process—a description
which for the sake of readability nevertheless leaves out
much detail—well illustrates the problems a veteran faces
when trying to navigate the complex of rules and proce-
dures that exist. Here the veteran in the course of mak-
ing a claim for benefits and seeking to have it adjudicated
10 STEWART v. MCDONALD
fairly had pieces of it dealt with by three different region-
al offices—Muskogee, O.K., Winston-Salem, N.C., and
Columbia, S.C. Each RO proceeded to address the specific
question they understood was before them, and each
made various rulings, often accompanied with letters to
the effect that other matters were still under considera-
tion.
After the VA concluded its review of the veteran’s
claim, and having denied benefits, the matter was re-
viewed by the Board, which reopened the claim at issue
but declined to adjudicate benefits for IBS. Later, on
review before the Veterans Court, that court vacated and
remanded the determinations of the Board except as to
the IBS issue; the veteran now has appealed that issue to
us.
For purposes of focusing on the essence of the problem
presented, the following discussion highlights only the
facts salient to our determination:
The veteran here made a broadly-stated claim in 2005
for disability benefits for “stomach problems” and acid
reflux. After going through the RO review processes and
eventually having been denied benefits, she timely filed in
2008 the requisite NOD. Later that year, after further
processing by the VA, the matter landed in the lap of the
Board. However, in the meantime, between the time the
NOD was filed and the time the Board undertook the
appeal, the veteran, on whose advice we do not know,
requested that her claim be reopened and that IBS—a
specific type of “stomach problem”—be added.
Despite various pieces of evidence about a possible
IBS condition, and indeed despite a subsequent diagnosis
by the VA itself confirming the presence of IBS, the Board
refused to consider the IBS issue. The Board treated the
veteran’s earlier attempt to highlight the IBS issue as a
new claim, and in its decision stated that her failure to
appeal that issue precluded a recovery for IBS. With
STEWART v. MCDONALD 11
respect to this, the Veterans Court approved of the Board
approach, stating that “the Board was not required to
readjudicate entitlement based on the IBS-specific stom-
ach symptoms that were addressed in a separate, unap-
pealed RO decision.” J.A. 6.
3.
Now on appeal to us we have been offered a variety of
legal issues to consider, including what was actually
adjudicated, the doctrine of implicit denial, whether the
two claims are actually the same claim, and whether they
can be bifurcated by the Agency. But at bottom, the case
comes down to this: did the veteran’s initial claim, en-
compassing “stomach problems,” include the possible
problem of IBS as well as other such medical problems,
like the oft-mentioned GERD? If so, following the first
denial of benefits regarding which the veteran filed the
requisite NOD, a second NOD addressed to IBS would not
be necessary, and the Board erred in not addressing that
part of the veteran’s original claim.
The parties agree that the exact scope of the original
claim is a question of fact, and as such we cannot sepa-
rately adjudicate that question. To decide this case we
need not challenge that view. We can, however, based on
the record and the findings of the adjudicators below,
determine whether their treatment of the IBS question as
they understood it was proper and in accordance with law.
With regard to the scope of the original claim, the rec-
ord indicates that the Board’s general understanding was
that “stomach problems” properly understood in the
context of this claim included all typical medical problems
related to that broad description, which would include
IBS. “As such, both the Veteran’s reported stomach
symptoms and acid reflux have been attributed to
know[n] clinical diagnoses of IBS and GERD, respectively
. . . .” J.A. 35.
12 STEWART v. MCDONALD
From the evidence in the record, and from the plain
meaning of the original claim, it would seem logical to
have understood the claim as encompassing typical stom-
ach disorders that result from stress, and especially the
stresses accompanying military service in a war zone. As
such, it would presumably include IBS. Indeed, the
Board’s decision, citing the Clemons case, notes that a
claim for acid reflux and stomach problems “also encom-
pass[es] claims for service connection for all gastroesoph-
ageal disabilities afflicting a Veteran based on review of
the medical evidence. In this case, the record also reflects
a diagnosis of GERD and IBS.” See J.A. 22–23, quoted in
full above. The Veterans Court did not disturb this
determination.
Furthermore, the evidence indicates that the veter-
an’s stomach symptoms could have been attributable to
IBS. Specifically, at her January 2010 VA examination,
when describing her stomach symptoms, the veteran
reported having frequent stools, bowel urgency, severe
cramping, excessive flatulence, and bloating. In relation
to these reported symptoms, the VA examiner provided a
diagnosis of IBS. Had the VA given the veteran the
benefit of the doubt in that connection, as it is required to
do by law, this long drawn out dispute over these service
benefits would have been addressed and disposed of years
ago.
The attempt by the veteran to add the term “IBS” to
the already existing claim was perhaps ill-advised, and
led to the Board’s erroneous ruling that a proper appeal,
which would include a second NOD, was necessary. In
some circumstances, multiple NODs may be necessary in
the context of a single claim. 2 However, if the 2005 claim
2 See, e.g., Barrera v. Grober, 122 F.3d 1030, 1032
(Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156,
STEWART v. MCDONALD 13
is fairly read to include IBS, and we agree with the Board
that it should be so read, we have not discovered—and the
parties do not suggest—any case in which we held that a
veteran must file a second NOD addressing service con-
nection for the same claim already addressed by a prior
NOD.
Accordingly, we reverse that part of the judgment of
the Veterans Court that, on remand to the Board, ap-
proved of the Board’s erroneous decision to exclude fur-
ther consideration of IBS. The veteran did not have to file
a second NOD addressing IBS because she had already
filed a prior NOD addressing her claim, which included
possible IBS. We affirm the other portions of the judg-
ment of the Veterans Court.
The matter is remanded to the Veterans Court with
instructions to return the case to the VA for further
adjudication consistent with this opinion. The VA is to be
instructed to waive, wherever necessary, any waivable
procedural bars to complete adjudication of the original
claim; to permit the veteran to supplement the record as
deemed necessary with regard to the IBS issue and any
other matters within the contemplation of the original
claim; and to expedite its processing of the case.
REVERSED-IN-PART, AFFIRMED-IN-PART, AND
REMANDED.
1158–59 (Fed. Cir. 1997); Hamilton v. Brown, 39 F.3d
1574 (Fed. Cir. 1994).
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PATRICIA D. STEWART,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7110
______________________
BRYSON, Circuit Judge, dissenting.
I respectfully dissent.
The majority predicates its ruling in this case on its
conclusion that Ms. Stewart’s 2005 claim included a claim
for irritable bowel syndrome (“IBS”) and that the Board of
Veterans’ Appeals interpreted the 2005 claim in the same
manner. I do not agree that the Board made clear that it
regarded IBS as being within the scope of Ms. Stewart’s
2005 claim. How the Board interpreted the 2005 claim is
critical to deciding whether the Board and the Veterans
Court were correct in holding that Ms. Stewart’s claim of
service connection for IBS became final in February 2010.
I would therefore remand the case for the Board to deter-
mine whether Ms. Stewart’s 2005 claim raised a claim of
service connection for IBS.
2 STEWART v. MCDONALD
I
In September 2005, Ms. Stewart filed a claim for ser-
vice connection for “acid reflux,” “stomach problems,” and
other unrelated disabilities. A regional office of the
Department of Veterans Affairs (“DVA”) denied that claim
in June 2006. Ms. Stewart sought reconsideration of that
denial in November 2006, and the regional office denied
her request for reconsideration in October 2007. She filed
a notice of disagreement in response to that decision in
March 2008. 1
At the time of the regional office’s action in October
2007, the only mention of IBS anywhere in the record was
a cryptic entry in a May 2007 report of a DVA Medical
Center. As part of a lengthy description of Ms. Stewart’s
medical issues, that report included a note reading
“?IBS . . see pcc for f/u.” 2 The regional office’s 2007 deci-
1 The parties dispute whether the DVA should have
treated Ms. Stewart’s November 2006 request for recon-
sideration as a notice of disagreement with the June 2006
denial of her September 2005 claim. Under the liberal
and sympathetic construction that the DVA is required to
give to documents filed by veterans, the request for recon-
sideration should have been considered to be a notice of
disagreement. That issue, however, does not affect the
analysis in this case other than to make it appropriate to
refer to the September 2005 claim as the “stomach prob-
lems” claim that was ultimately placed into appellate
status for Board review.
2 A physician’s report from a 2005 office visit re-
ported that Ms. Stewart “has what sounds like irritable
bowel syndrome for many years,” but that report was not
part of the record of the 2006 and 2007 regional office
decisions. It was included in the record of the February
2009 regional office decision. In the 2009 decision, the
STEWART v. MCDONALD 3
sion did not discuss IBS or include any reference to the
“?IBS” note. Instead, like the earlier 2006 decision, the
2007 decision simply stated, as to Ms. Stewart’s com-
plaints of acid reflux and stomach problems, that the
evidence showed that her condition was “not incurred in
or aggravated by military service.”
In July 2008, Ms. Stewart filed a “request to reopen
my claim and add PTSD and irritable bowel syndrome.”
The DVA regional office internally treated the claim for
IBS as a “new condition (not part of GERD [gastroesopha-
geal reflux disease] with stomach problems).” After a
request for information regarding the IBS claim, the
regional office denied that claim for lack of service connec-
tion in February 2009. The regional office advised Ms.
Stewart that if she wished to appeal that decision, she
would have to file a notice of disagreement within one
year. Ms. Stewart did not file a timely notice of disa-
greement in response to that regional office decision.
In August 2010, Ms. Stewart filed a new claim for var-
ious disabilities, again expressly including IBS. The
evidence pertaining to that claim included a January
2010 DVA medical examination that contained a diagno-
sis of IBS. In May 2011 the regional office denied the
2010 claim for IBS on procedural grounds. The office
determined that the IBS claim had been denied in Febru-
ary 2009 and that the denial had become final because
Ms. Stewart had failed to file a timely notice of disagree-
ment following that decision. The regional office ruled
that Ms. Stewart had failed to point to any new and
material evidence relating to IBS that would justify
reopening the previously denied claim.
regional office noted that report, but said that it offered
“no clinical diagnosis” of IBS.
4 STEWART v. MCDONALD
In May 2012, the Board decided Ms. Stewart’s appeal
from the 2006 and 2007 regional office decisions. The
Board discussed Ms. Stewart’s “stomach symptoms” and
acknowledged the 2010 diagnoses of IBS and GERD, but
it concluded that neither condition was related to Ms.
Stewart’s active military service. The Board noted that
Ms. Stewart had submitted a claim for IBS in July 2008,
that the July 2008 claim had been denied in February
2009, and that the February 2009 denial was not sepa-
rately appealed. However, the Board did not state wheth-
er IBS was part of her original 2005 claim.
The Veterans Court remanded the Board’s ruling for
further consideration on other issues, but it found “no
error in the Board’s treatment of the issue of IBS.” The
court stated that the DVA “was permitted to adjudicate
the matter of service connection for IBS separately from
the appellant’s original “stomach problems” claim, and
that under the circumstances of this case the Board “did
not err in recharacterizing the ‘stomach problems’ claim
to exclude those symptoms [of IBS] and encompass only
the previously unadjudicated symptoms attributed to
GERD by the examiner.” The court added that the exam-
iner’s January 2010 “clinical diagnosis of IBS may be
relevant evidence sufficient to reopen the appellant’s IBS
claim, in light of the [regional office’s] finding in February
2009 that the pertinent medical records “offer[] no clinical
diagnosis of [IBS].” However, the court concluded that
the Board “was not required to readjudicate entitlement
based on the IBS-specific stomach symptoms that were
addressed in a separate unappealed [regional office]
decision.”
II
At the outset, the government argues that this case
turns on a factual dispute and is therefore outside this
court’s jurisdiction under 38 U.S.C. § 7292(d)(2), which
STEWART v. MCDONALD 5
bars this court from reviewing “a challenge to a factual
determination.” That contention is without merit.
It is true that questions as to the scope of a veteran’s
claim and whether the Board or the Veterans Court
misinterpreted the scope of the veteran’s claim are factual
issues that are outside the scope of our review. See El-
lington v. Peake, 541 F.3d 1364, 1371 (Fed. Cir. 2009);
Bonner v. Nicholson, 497 F.3d 1323, 1328 (Fed. Cir. 2007).
In this case, however, we are not being called upon to
decide the factual question of the scope of Ms. Stewart’s
September 2005 claim. Instead, we must decide whether
the Board committed legal error in requiring Ms. Stewart
to file a separate notice of disagreement after her July
2008 request to “reopen [her] claim and add PTSD and
irritable bowel syndrome” was denied.
That legal question turns on whether the Board re-
garded Ms. Stewart’s September 2005 claim as raising
IBS. If it did, then it was error for the Board to hold that
Ms. Stewart was required to file a second notice of disa-
greement as to IBS following the denial of her July 2008
claim. If it did not, then the Board was legally correct to
hold that the denial of Ms. Stewart’s IBS claim became
final when she failed to file a timely notice of disagree-
ment in response to the regional office’s February 2009
decision. Thus, in order to determine whether the Board
erred, we need to know whether the Board regarded the
IBS claim as being within the scope of Ms. Stewart’s
original September 2005 claim. As I read the Board’s
opinion, it never made such a finding.
In the majority’s view, the Board found that Ms.
Stewart’s September 2005 claim of “stomach problems”
included IBS. The majority points to the Board’s state-
ment, in describing the results of the January 2010 DVA
medical examination, that “both the Veteran’s reported
stomach symptoms and acid reflux have been attributed
to know[n] clinical diagnoses of IBS and GERD respec-
6 STEWART v. MCDONALD
tively, which are not related to her active service.” That
observation, however, refers to the state of the record as
of 2010. It cannot fairly be read to constitute a finding
that Ms. Stewart’s original 2005 claim of “stomach prob-
lems” included a claim for IBS. While the Board stated
that a claim for acid reflux and stomach problems “also
encompasses claims for service connection for all gas-
troesophageal disabilities afflicting a Veteran,” it is by no
means clear that the Board meant to include IBS in the
category of “gastroesophageal disabilities,” since the term
“gastroesophageal” generally refers to conditions affecting
the upper, not the lower, portion of the alimentary canal.
For that reason, I disagree with the majority that the
Board necessarily concluded that the 2005 claim included
IBS.
The Veterans Court’s opinion, which found no error in
the Board’s disposition of the IBS issue, was also incon-
clusive on this question. The opinion first noted that the
IBS claim was not adjudicated until the February 2009
regional office decision, and Ms. Stewart’s condition was
not diagnosed as IBS until January 2010. The court then
held that the Board did not err in excluding the claim of
IBS symptoms from its review of the regional office deci-
sion that was before the Board. The court explained that
the Board “was not required to readjudicate entitlement
based on the IBS-specific stomach symptoms that were
addressed in a separate, unappealed RO decision.” While
the court’s opinion seems to be based on the assumption
that Ms. Stewart’s 2005 claim and her 2006 request for
reconsideration did not raise IBS, either expressly or
implicitly, the court did not say so.
Because it is not clear to me that the Board and the
Veterans Court regarded Ms. Stewart’s original 2005
claim as including IBS, I would remand for a finding on
that question. Resolving that factual issue would enable
the Board and the Veterans Court to properly address the
viability of Ms. Stewart’s IBS claim, including whether
STEWART v. MCDONALD 7
the denial of that claim became final when she failed to
file a notice of disagreement in response to the February
2009 regional office decision, and whether, in any event,
her IBS claim fails for lack of service connection.