James White v. Shinseki , 524 F. App'x 715 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES A. WHITE,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7174
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1421, Judge Bruce E. Kasold.
______________________
Decided: May 14, 2013
______________________
ROGER A. DECANIO, The Sutter Law Firm, PLLC, of
Charleston, West Virginia, for claimant-appellant.
ALEX P. HONTOS, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Principal
Deputy Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
2 JAMES WHITE v. SHINSEKI
Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy
Assistant General Counsel, and LARA K. EILHARDT, Attor-
ney, United States Department of Veterans Affairs, of
Washington, DC.
_____________________
Before DYK, LINN, and PROST, Circuit Judges.
PER CURIAM.
James A. White (“White”) appeals a decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) that affirmed the decision of the Board
of Veterans’ Appeals (“Board”) denying White certain
benefits. White v. Shinseki, No. 11-1421, 2012 WL
2298888 (Vet. App. June 19, 2012). Because White fails
to provide any basis to upset the decision of the Veterans
Court, this court affirms.
BACKGROUND
The Board denied White benefits for an innocently ac-
quired psychiatric disorder including post-traumatic
stress disorder after reviewing the evidence before it,
including medical reports from the Department of Veter-
ans Affairs (“VA”) and White’s treating psychiatrist.
White appealed this decision to the Veterans Court and
argued that “the Board provided an inadequate statement
of reasons or bases regarding the evidence of continuity of
symptomatology and why it did not warrant service
connection for his currently diagnosed mood disorder.” Id.
at *1. The Veterans Court affirmed the Board’s decision,
concluding that “the Board adequately explained the basis
for denying benefits for his currently diagnosed mood
disorders.” Id. The Veterans Court also concluded that
White did not show that the Board erred in the relevant
finding or misapplied the law. White appealed to this
JAMES WHITE v. SHINSEKI 3
court and initially filed several briefs that were rejected.
This court has jurisdiction under 38 U.S.C. § 7292(c).
DISCUSSION
White makes essentially two arguments why this
court should decide his disability claim in his favor and
reverse the decision of the Veterans Court. White first
argues that this court should adopt the “treating physi-
cian” rule under which the opinion of the treating physi-
cian is provided greater weight over the opinions of other
physicians. In making this argument, White discusses
the facts of his case and cites letters from his treating
psychiatrist, including one dated September 20, 2012 that
White acknowledges was not previously considered by the
Board in this case. White also makes a passing argument
that the Board inappropriately dismissed the evidence of
his treating psychiatrist, presumably contending that the
Board did not adequately state its reasons or basis for
concluding that such evidence was not sufficient to sus-
tain his claim. White next argues that the Veterans
Court’s abbreviated opinion provided insufficient notice or
information for an appeal.
The government argues that White impermissibly
filed a corrected brief raising different issues, particularly
the issue of the “treating physician” rule, and that this
court should only consider the issues raised in his initial
brief. The government also argues that, if the court
reaches the issue of the “treating physician” rule, a prior
decision of this court requires its rejection. As for the
September 20, 2012 letter from White’s treating psychia-
trist, the government argues that this court should not
consider it because it was not before the Board and, thus,
is not part of the record on appeal. The government
further argues that this court should dismiss White’s
appeal based on the challenge to the Board’s reasons
under 38 U.S.C. § 7104(d)(1) because it involves the
4 JAMES WHITE v. SHINSEKI
application of law to facts, which is outside of this court’s
jurisdiction under 38 U.S.C. § 7292. Similarly, the gov-
ernment argues that this court lacks jurisdiction to con-
sider the Board’s weighing of evidence because it involves
the facts of the case. As to White’s argument on the
sufficiency of the Veteran’s Court’s opinion, the govern-
ment argues that no rule requires a written discussion,
that the Veterans Court considered White’s argument,
and that the Veteran’s Court’s opinion provided sufficient
notice of its rationale.
We begin with the argument that the “treating physi-
cian” rule should be adopted. There is no need for us to
address the government’s waiver rule, which is based on
White’s failure to make that argument in his initial
rejected brief, as the argument has no merit even if
properly before us. White’s argument for the “treating
physician” rule fails because this court has already direct-
ly addressed and rejected that rule. See White v. Principi,
243 F.3d 1378, 1381 (Fed. Cir. 2001) (“[T]he VA benefits
statutes and regulations do not provide any basis for the
‘treating physician’ rule and, in fact, appear to conflict
with such a rule. Moreover, given the comprehensive
statutory and regulatory scheme for the award of veter-
ans’ benefits, it would not be appropriate for this court to
impose the ‘treating physician’ rule on the VA.”). “[W]e
are bound to follow our own precedent as set forth by
prior panels . . . .” Hometown Fin., Inc. v. United States,
409 F.3d 1360, 1365 (Fed. Cir. 2005).
With respect to the sufficiency of the Board’s analysis,
38 U.S.C. § 7104(d)(1) requires that a Board decision
contain “a written statement of the Board’s findings and
conclusions, and the reasons or bases for those findings
and conclusions, on all material issues of fact and law
presented on the record.” Assessing the sufficiency of the
Board’s opinion, including any challenge based on the
September 20, 2012 letter that was not before the Board
JAMES WHITE v. SHINSEKI 5
and thus arguably not part of the record on appeal, neces-
sarily entails a review of the factual record or the applica-
tion of law to fact. Those determinations are beyond our
authority to review under 38 U.S.C. § 7292(d)(2), which
states that this court “may not review (A) a challenge to a
factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case,”
unless the appeal “presents a constitutional issue.” See
Cook v. Principi, 353 F.3d 937, 941 (Fed. Cir. 2003) (con-
cluding that “Mr. Cook presents us with a question out-
side of our jurisdiction” when “[t]o agree with Mr. Cook,
we would first need to conclude that the Veterans Court’s
application of law, in this case § 7104(d)(1), to the facts,
here the failure to consider the consent form, was incor-
rect”).
As to the sufficiency of the Veterans Court’s decision,
no law, rule or regulation places a sufficiency requirement
on an opinion of the Veterans Court. See Bernklau v.
Principi, 291 F.3d 795, 801 (Fed. Cir. 2002) (“It is well-
established that a litigant’s right to have all issues fully
considered and ruled on by the appellate court does not
equate to a right to a full written opinion on every issue
raised. While it may be desirable in some cases to afford
each issue a complete written discussion, no statute or
rule compels such an approach by the Court of Appeals for
Veterans Claims (or indeed any other court).” (citations
omitted) (internal quotation marks omitted)). Here, the
Veterans Court’s opinion reflected that it considered
White’s argument and provided notice of its rationale for
an appeal. Any challenge to the sufficiency of the facts
underlying the Veterans Court’s decision or the applica-
tion of law to fact would be beyond this court’s authority
to review. 38 U.S.C. § 7292(d)(2).
For the foregoing reasons, the decision of the Veterans
Court is affirmed.
6 JAMES WHITE v. SHINSEKI
AFFIRMED
COSTS
Each party shall bear its own costs.