Wadsworth v. Shinseki , 373 F. App'x 69 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-7014
WILLIAM A. WADSWORTH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
William A. Wadsworth, of Zephyrhills, Florida, pro se.
Kenneth D. Woodrow, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E.
Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the
brief were Michael J. Timinski, Deputy Assistant General Counsel, and Amanda R.
Blackmon, Attorney, Office of the General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Mary J. Schoelen
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-7014
WILLIAM A. WADSWORTH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims
in case no. 08-639, Judge Mary J. Schoelen.
___________________________
DECIDED: April 7, 2010
___________________________
Before NEWMAN, BRYSON and DYK, Circuit Judges.
PER CURIAM.
DECISION
William A. Wadsworth appeals from a decision of the United States Court of
Appeals for Veterans Claims (“the Veterans Court”). We affirm.
BACKGROUND
Mr. Wadsworth served on active duty in the U.S. Army between 1943 and 1946.
His 1946 separation examination noted atrophy of the interosseous muscles of his right
hand. In May of that year, a Veterans Administration regional office awarded Mr.
Wadsworth entitlement to service connection for that injury but found the injury
noncompensable.
Mr. Wadsworth subsequently submitted a series of claims for compensation
based on the injury to his hands. In October 1965, he sought compensation for his right
hand injury, but the regional office denied that claim after he failed to report for a
scheduled physical examination. In October 1970, he asked for his file to be reopened.
Following a physical examination, the regional office again rated his injury as
noncompensable.
In August 1973, Mr. Wadsworth again asked to reopen his claim. This time,
based on Veterans Administration medical records indicating that he had muscular
atrophy in both hands, the regional office granted him a disability rating of 20% for each
hand, effective as of September 6, 1973. In December 1975, he requested an increase
in his disability rating. After another medical examination, the regional office confirmed
and continued its previous rating decision. He again requested an increased disability
rating in 1989, but the previous rating decision was confirmed at that time.
On November 13, 1997, Mr. Wadsworth submitted another claim for an increase
in his disability rating. A medical examination resulted in a diagnosis of advanced
osteoarthritis involving the interphalangeal joints. Notwithstanding that diagnosis, the
regional office did not alter Mr. Wadsworth’s disability rating. Mr. Wadsworth contested
the regional office’s failure to consider evidence of his arthritis when evaluating the
severity of his service-connected disability. In addition, he submitted a 1999 medical
report from his own physician in support of his claim. Nevertheless, in a September
2000 rating decision, the regional office again determined that a higher rating was not
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warranted and denied service connection for osteoarthritis of the hands. In a
subsequent decision in May 2001, however, the regional office recharacterized Mr.
Wadsworth’s disability as atrophy in the intrinsic muscles with osteoarthritis and
assigned him 70% rating for the right hand and 60% rating for the left hand. The
regional office assigned an effective date of November 13, 1997, the date of his most
recent claim for a rating increase. At the same time, the regional office denied Mr.
Wadsworth’s request for special monthly compensation (“SMC”) based on his loss of
the use of his hands. After further proceedings, however, the regional office in 2006
assigned Mr. Wadsworth a 100% disability rating for loss of the use of the intrinsic
muscles of both hands due to atrophy and granted his request for SMC based on the
loss of use of both hands. The regional office set the effective date for those benefits as
April 7, 2001.
In November 2006, Mr. Wadsworth appealed that decision to the Board of
Veterans’ Appeals. Before the Board, he argued that he was entitled to an earlier
effective date for his SMC benefits, and he asserted that there was clear and
unmistakable error (CUE) in the rating decision of June 1947 because he had not been
awarded benefits at that time.
On January 29, 2008, the Board of Veterans’ Appeals issued a decision on Mr.
Wadsworth’s appeal. The Board first referred his CUE claim to the regional office for
further development. Next, the Board concluded that his disability “rose to the level of
effective loss of use of his hand at the time his claim was received on November 13,
1997,” and therefore agreed with his contention that he was entitled to a 100% disability
rating and an award of SMC, both effective from that date. The Board considered
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whether an earlier effective date could be established under 38 U.S.C. § 5110(b)(2) and
38 C.F.R. § 3.400(o)(2), but concluded that competent evidence did not support an
effective date earlier than the date of his claim.
Although the Board ruled in his favor on his request for 100% disability and SMC
benefits retroactive to the date of his claim and referred his CUE claim to the regional
office for further development, Mr. Wadsworth nonetheless appealed the Board’s
decision to the Veterans Court. In his appeal, he argued that his disability should have
been assigned a 30% rating as of the date of his separation from service and that he
should have received a 60% rating between the date his left hand was determined to be
part of his service-connected disability and the date that he was awarded a 70% rating.
He also claimed that because the Veterans Administration never properly diagnosed his
condition, he was unable to purchase life insurance. As a result, he argued, he should
be financially compensated for his inability to obtain coverage.
The Veterans Court held that the Board had failed to provide an adequate
explanation of why November 13, 1997, is the proper effective date for his increased
rating and SMC claims. In particular, the court noted that the Board had not made a
determination that all of Mr. Wadsworth’s claims prior to the 1997 claim were final. The
court therefore vacated the Board’s ruling on that issue and remanded the case to the
Board for a more complete explanation of its decision on that issue. The court,
however, upheld the portion of the Board’s decision in which the Board had ruled that
an earlier effective date was not warranted under the special circumstances set forth in
38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2).
2010-7014 4
The Veterans Court next observed that the Board had referred Mr. Wadsworth’s
CUE claim to the regional office. Because the Board had not made a decision on the
CUE issue, the Veterans Court held that it lacked jurisdiction to address that issue. As
for Mr. Wadsworth’s argument that the agency’s failure to diagnose his condition had
precluded him from obtaining life insurance, the Veterans Court concluded that it could
not consider that claim because the Board did not make a decision on that issue and
because Mr. Wadsworth was seeking relief that the Veterans Court was not authorized
to grant. Mr. Wadsworth appealed to this court.
DISCUSSION
Mr. Wadsworth first contends that he should have received a 30% rating for his
service-connected disability from the date he left service until his left hand was
determined to be included in his disability, and that he should have received a 60%
rating from that point until his rating was raised to 70%. To the extent his argument is
based on his CUE claim, the Veterans Court correctly held that it lacked jurisdiction to
decide that issue. The Veterans Court’s jurisdiction is limited to reviewing final
decisions of the Board, Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000), and the
Board did not decide Mr. Wadsworth’s CUE claim but instead referred it to the regional
office for further development.
To the extent Mr. Wadsworth’s claim is based on the contention that his pre-1997
claims were not final, the Veterans Court did not decide that issue, but instead
remanded it to the Board. That issue is therefore not ripe for decision by this court, to
the extent that this court may have jurisdiction over the issue. As a general matter, we
review only final decisions of the Veterans Court. See Allen v. Principi, 237 F.3d 1368,
2010-7014 5
1372 (Fed. Cir. 2001). While there are certain exceptions to that rule, see Williams v.
Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002), this case does not fit within any of those
exceptions. The issue of the finality of Mr. Wadsworth’s pre-1997 claims will
presumably be resolved on remand. If that resolution is adverse to Mr. Wadsworth, he
can then seek review by the Veterans Court.
Mr. Wadsworth’s second claim is that the agency’s failure to provide a diagnosis
for his atrophy rendered him unable to purchase individual life or health insurance and
that he should be compensated for his loss. Mr. Wadsworth has not pointed to any
authority under which the court could order relief of that nature, and we are aware of
none. The Veterans Court therefore properly rejected that claim.
For the foregoing reasons, we affirm the decision of the Veterans Court. 1
1
Mr. Wadsworth submitted a motion to strike the government’s brief as being
untimely filed. That motion is denied.
2010-7014 6