Diggs v. Shulkin , 703 F. App'x 972 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WOODROW DIGGS,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2016-2243
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2017, Judge Alan G. Lance, Sr.
______________________
Decided: July 14, 2017
______________________
JOHN F. CAMERON, Montgomery, AL, argued for
claimant-appellant.
REBECCA SARAH KRUSER, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by TANYA KOENIG, BENJAMIN C. MIZER,
ROBERT E. KIRSCHMAN, JR., SCOTT D. AUSTIN; CHRISTINA
LYNN GREGG, Y. KEN LEE, Office of General Counsel,
2 DIGGS v. SHULKIN
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
Before MOORE, O’MALLEY, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
Woodrow Diggs appeals a decision of the Court of Ap-
peals for Veterans Claims. Mr. Diggs argues that the
Veterans Court erred by applying an improper legal
standard in concluding that Mr. Diggs had not filed a
substantive appeal. Because the Veterans Court applied
the correct legal standard, we affirm.
BACKGROUND
1. Mr. Diggs’ Military Service
In June 1970, Mr. Diggs entered active duty military
service. In July 1970, Mr. Diggs was admitted to the U.S.
Army Hospital, Fort Polk, Louisiana for psychiatric
evaluation. J.A. 76–79. The treating physician diagnosed
Mr. Diggs with schizophrenia and neutropenia. 1
During his hospitalization, Mr. Diggs told a military
psychiatrist, Dr. Ulmer, that he had shot a drill instruc-
tor. J.A. 77. Although he apparently believed he had shot
his instructor, he had not. J.A. 104. Dr. Ulmer’s notes
reflect that Mr. Diggs provided a history that he “claims
to both hear and see devil [for] 1½ years.” J.A. 77. Sub-
sequent treatment notes reflect that Mr. Diggs stated that
he had been convicted of grand larceny at 13, suspended
or expelled from school three times, and was fired from
about eight different jobs. J.A. 77.
1 Neutropenia is an abnormally low concentration
of neutrophils (a type of white blood cell) in the blood.
Petitioner’s neutropenia diagnosis is not at issue on
appeal.
DIGGS v. SHULKIN 3
In November 1970, Mr. Diggs was discharged from
the army after a Medical Evaluation Board found that he
was unfit for further military service. J.A. 3, 148.
Following his discharge, Mr. Diggs was hospitalized
multiple times for psychiatric problems. During a 1972
hospitalization at the VA Medical Center in Miami,
Dr. Wainer noted that Mr. Diggs was hospitalized “while
on active duty, after shooting his drill [sergeant] because
he was continuously bugging him. It was most probable
that at that time, he had an acute psychotic break.” J.A.
225. During a 1973 hospitalization at the same facility,
Dr. Herrero noted that Mr. Diggs had “a history of a
psychotic break while in active duty and also has a histo-
ry of use of different hallucinogenic drugs.” J.A. 236.
During his incarceration in 1976, Dr. Parado noted that
Mr. Diggs stated that he “has been hearing voices since he
was in the U.S. Army.” J.A. 329.
2. Mr. Diggs’ Veterans Claims
Immediately following his discharge, Mr. Diggs filed a
series of claims for disability seeking service connection
for schizophrenia. All of the claims were denied. His
repeated requests for reconsideration were also denied.
In 1978, the Board of Veterans Appeals denied Mr. Diggs’
appeal for service connection. The Board found that
despite the usual presumption of soundness for veterans,
given the detailed clinical history in this case, Mr. Diggs’
schizophrenia “clearly and unmistakably predated his
service induction.” J.A. 649. The Board also found no
“aggravation of the condition in issue.” Id. The Board
found that there was “no persuasive evidence that there
was an advance in the basic underlying psychopathology
during his period of active duty”; rather, it saw the evi-
dence as reflecting only continuance during service of Mr.
Diggs’ preservice psychiatric problems, including halluci-
nations. Id. The Board also found that “any change in
4 DIGGS v. SHULKIN
his condition was within the limits of normal progression
of the preservice defect.” Id.
From 1978 to 1995, Mr. Diggs repeatedly requested to
reopen his claim for service connection. Each request was
denied for failure to furnish new and material evidence.
Following a claim he made in 1994, Mr. Diggs filed a
timely Notice of Disagreement (“NOD”). On November 3,
1994, in response to the NOD, the Regional Office issued
its Statement of the Case (“SOC”), continuing its denial of
service connection because Mr. Diggs’ claim was “not
supported by the official service medical records nor is
there evidence of treatment for a nervous condition while
the veteran was in service.” J.A. 1515–20.
On March 3, 1995, a VA employee wrote a Field Ex-
amination Report for fiduciary purposes concerning who
should be the payee of Mr. Diggs’ VA pension benefits.
J.A. 1538–41. That document also included a statement,
under the “Entitlement To Other Benefits” section, that
“[t]he veteran does not appear to be in need of either aid
and attendance or housebound benefits. He has no VA
life insurance. He is aware of medical benefits. He has
filed a claim for service connection regarding his mental
disorder.” J.A. 1539 (emphasis added). Another Field
Examination Report in May 1995 considered Mr. Diggs’
capacity to manage funds and concluded that Mr. Diggs’
VA benefits should continue to be sent to his wife. J.A.
1542–46. The report also stated, in the “Entitlement To
Benefits” section, that “[t]he veteran also mentioned to me
that he has a claim pending for service-connection for his
mental condition and his claim is presently in the Veter-
ans Court of Appeals.” J.A. 1545 (emphasis added).
In November 1997, Mr. Diggs again requested to reo-
pen his claim for service connection. J.A. 4. The Regional
Office denied service connection in July 1999, but on
appeal, the Board sought a medical opinion regarding
whether Mr. Diggs’ condition worsened during service.
DIGGS v. SHULKIN 5
On May 8, 2003, Mr. Diggs received a medical exami-
nation from the VA, and the VA subsequently granted
Mr. Diggs service connection in 2004. J.A. 1923–28;
1994–98. Mr. Diggs’ service connection for schizophrenia
was granted effective the date of his 1997 claim.
Mr. Diggs challenged that 1997 effective date both on
direct appeal, and through an assertion of clear and
unmistakable error (“CUE”) in the 1978 board decision. 2
On direct appeal, Mr. Diggs argued that he was entitled
to an earlier date because he had earlier claims for service
connection that remained unadjudicated. J.A. 3176.
Specifically, Mr. Diggs argued that his March 1995
statement to the VA as recorded in the VA examiner’s
report constituted a timely substantive appeal of the
November 1994 SOC. This argument was rejected by the
Board in an April 17, 2014 decision, finding that the
report did not indicate disagreement with any VA decision
or contain any of the information contemplated by 38
U.S.C. § 7105(d)(3). J.A. 21. Mr. Diggs appealed to the
Veterans Court, which affirmed the Board’s decision. The
Veterans Court held “that the Board properly found that
the March 1995 report does not meet the criteria to be
construed as a Substantive Appeal, as it does not reflect
any disagreement with or desire to appeal the November
1994 SOC.” J.A. 8 (citing Gibson v. Peake, 22 Vet. App.
11, 15 (2007); 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.202).
This appeal followed.
DISCUSSION
1. Standard of Review and Jurisdiction
This court may review a Veterans Court decision
“with respect to the validity of a decision of the Court on a
rule of law or of any statute or regulation.” 38 U.S.C.
2 Mr. Diggs has withdrawn his CUE argument and
therefore it is no longer at issue for this appeal.
6 DIGGS v. SHULKIN
§ 7292(a). This court may not, however, “review the
Veterans Court’s factual findings or its application of law
to facts absent a constitutional issue.” Singleton v.
Shinseki, 659 F.3d 1332, 1334 (Fed. Cir. 2011) (citations
omitted).
In reviewing a Veterans Court decision, this court
may decide “all relevant questions of law, including
interpreting constitutional and statutory provisions.” 38
U.S.C. § 7292(d)(1). This court “reviews de novo statutory
and regulatory interpretations relied upon by the Veter-
ans Court.” Mayfield v. Nicholson, 499 F.3d 1317, 1321
(Fed. Cir. 2007).
As a preliminary matter, the government contends
that we must dismiss this appeal for lack of jurisdiction.
The Secretary argues we lack jurisdiction to hear the
appeal because the appeal is not directed to a question of
law, but rather to application of law to facts. We disa-
gree. Both parties agree that the facts are undisputed.
Mr. Diggs argues on appeal that the Veterans Court failed
to apply the controlling rule of law in Rivera v. Shinseki,
654 F.3d 1377 (Fed. Cir. 2011), and applied an improper
legal standard in adopting the Board’s four-corners test.
These questions concern whether the correct rule of law
was applied and invoke questions of law that are review-
able by this court. Willsey v. Peake, 535 F.3d 1368, 1372
(Fed. Cir. 2008). This court, therefore, has jurisdiction to
review the Veterans Court decision raised in this appeal.
2. Applicability of Rivera v. Shinseki
A core issue that was before the Veterans Court con-
cerns a March 1995 report prepared by a VA field exam-
iner. J.A. 7, 1538–41. Mr. Diggs did not file it himself,
and it merely notes that Mr. Diggs “has filed a claim for
service connection regarding his mental disorder.” J.A.
1539. The record also shows a second VA field examina-
tion report from May 1995, which states that “the veteran
also mentioned to [the examiner] that he has a claim
DIGGS v. SHULKIN 7
pending for service-connection for his mental condition
and his claim is presently in the Veterans Court of Ap-
peals.” J.A. 1545.
Mr. Diggs argued that the March 1995 report consti-
tuted an appeal of the November 1994 SOC. The Veter-
ans Court disagreed, holding “that the Board properly
found that the March 1995 report does not meet the
criteria to be construed as a Substantive Appeal, as it
does not reflect any disagreement with or desire to appeal
the November 1994 SOC.” J.A. 8 (citing Gibson v. Peake,
22 Vet. App. 11, 15 (2007); 38 U.S.C. § 7105(d)(3); 38
C.F.R. § 20.202). Specifically, the Veterans Court noted
the Board’s finding that the March 1995 report does not
contain any of the information contemplated by 38 U.S.C.
§ 7105(d)(3). J.A. 7. That subsection states:
The claimant will be afforded a period of sixty
days from the date the statement of the case is
mailed to file the formal appeal. This may be ex-
tended for a reasonable period on request for good
cause shown. The appeal should set out specific
allegations of error of fact or law, such allegations
related to specific items in the statement of the
case. The benefits sought on appeal must be clear-
ly identified.
38 U.S.C. § 7105(d)(3).
On appeal, Mr. Diggs argues that the Veterans Court
failed to apply the controlling rule of law in Rivera v.
Shinseki, 654 F.3d 1377 (Fed. Cir. 2011). In Rivera, we
held that “Section 7105(d)(3) does not prescribe a particu-
lar format for the veteran’s appeal or a particular degree
of specificity that must be provided.” Id. at 1381. “[L]ess
specificity is necessary when the regional office’s decision
turns on only a single issue and the nature of the claimed
error with respect to that issue is obvious from the deci-
sion itself.” Id. “In fact, when the regional office decides
only one issue and references only one issue in the state-
8 DIGGS v. SHULKIN
ment of the case, the veteran’s expression of a desire to
appeal from the regional office’s decision effectively iden-
tifies the issue to be decided by the Board.” Id.
Mr. Diggs argues that his statements to the VA exam-
iner expressed a desire to appeal, and that those state-
ments under Rivera were sufficient to constitute an
expression to appeal. Mr. Diggs argues that the Veterans
Court erred when it relied on Gibson, rather than Rivera.
We disagree. The Veterans Court cited Gibson for the
correct legal proposition that to qualify as an appeal, the
veteran’s statement must reflect disagreement. 22 Vet.
App. at 15. Although Rivera holds that “the veteran’s
expression of a desire to appeal from the regional office’s
decision” might itself be a sufficient appeal in some cases,
654 F.3d at 1381, the Board found that the March 1995
report “does not reflect any disagreement with or desire to
appeal the November 1994 SOC.” J.A. 8. The Veterans
Court affirmed the Board’s conclusion that “[t]here is no
indication of disagreement with any VA decision con-
tained within the report.” J.A. 8, 21. The Veterans
Court, therefore, did not need to address Rivera.
Mr. Diggs argues that in reaching this conclusion, the
Board and the Veterans Court improperly confined their
analysis and consideration to the four corners of Mr.
Diggs’ March 1995 document and ignored all other docu-
ments in his claims file.
Mr. Diggs notes that 38 C.F.R. § 20.202 requires the
Board to read filings by claimants in a liberal manner.
Mr. Diggs also cites Douglas v. Derwinski, 2 Vet. App.
435, 439 (1992), which found that the Board’s review is
not limited to the four corners of a Form 1-9 substantive
appeal, and that the Board must consider all the evidence
of record.
In this case, however, there was no appeal filed in
1995. Mr. Diggs did not make any sort of filing in 1995,
and the oral statements he did make did not include a
DIGGS v. SHULKIN 9
request for an appeal. There is no requirement that the
Board interpret filings liberally where no filings were
made. Douglas does not apply in this case because the
claimant in Douglas had actually filed an appeal.
We find that the Veterans Court did not err in refus-
ing to apply a “four-corners” test. We affirm the Veterans
Court’s decision.
3. Notice to Mr. Diggs
Finally, Mr. Diggs argues that the Board failed to
provide him notice of the inadequacy of his 1995 “appeal”
as required under 38 C.F.R. § 20.203 (1994). The Veter-
ans Court did not address this issue in its opinion as it
was never raised by Mr. Diggs.
Notwithstanding, the Veterans Court found there was
no substantive appeal filed and, as such, it did not need to
reach the issue of whether the Board should have provid-
ed notice of that nonexistent appeal’s inadequacy. There-
fore, Mr. Diggs’ argument that the Board failed to provide
him notice is unpersuasive.
CONCLUSION
Because the Veterans Court applied the correct rule of
law, we affirm the Veterans Court’s decision.
AFFIRMED
COSTS
No costs.