Dixon v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
WILLIE DIXON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7013
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 09-3836, Judge Robert N. Davis.
__________________________
Decided: March 9, 2012
__________________________
WILLIE DIXON, of Coatesville, Pennsylvania, pro se.
MEREDYTH COHEN HAVASY, Trial Attorney, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent-appellee. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and TODD M. HUGHES, Deputy Director. On Counsel
DIXON v. DVA 2
on the brief was DAVID J. BARRANS, Deputy Assistant
General Counsel, United States Department of Veterans
Affairs, of Washington, DC.
__________________________
Before PROST, REYNA, and WALLACH, Circuit Judges.
PER CURIAM.
Willie Dixon appeals a U.S. Court of Appeals for Vet-
erans Claims (“Veterans Court”) decision, Dixon v. Shin-
seki, No. 09-3836 (Vet. App. July 29, 2011). The Veterans
Court affirmed an October 1, 2009 decision of the Board of
Veterans’ Appeals (“Board”) decision, which declined to
reopen a previously-denied service connection claim for
post-traumatic stress disorder (“PTSD”) and further
denied a service connection for hepatitis C and for a skin
disorder as secondary to Agent Orange exposure. For the
reasons set forth below, we dismiss for lack of jurisdiction.
I. BACKGROUND
Mr. Dixon served on active duty from June 1967 to
March 1970, including service in Vietnam. Later, he was
a member of the Marine Corps Reserve from March 1974
to May 1978 and had active duty for training from March
to August 1974. Mr. Dixon received an undesirable
discharge from his first period of service based upon a
record of several courts-martial and nonjudicial punish-
ments. In 1977, under the Department of Defense
(“DoD”) special discharge review program, his discharge
was upgraded to a discharge under honorable conditions.
However, in 1980, the Department of Veterans Affairs
(“VA”) Regional Office (“RO”) determined that the charac-
ter of Mr. Dixon’s discharge nonetheless precluded pay-
ment of VA benefits because the DoD’s upgrade was not
3 DIXON v. DVA
affirmed by the discharge review board. 1 Mr. Dixon
separated from his second period of service under honor-
able conditions.
In March 1996, Mr. Dixon filed a claim for service-
connected disability compensation for PTSD. In August
1996, the RO denied the claim, stating that the character
of Mr. Dixon’s discharge from his first period of service
precluded payment of benefits. The RO also noted that
the records in evidence did not reflect an in-service
stressor during his second period of service. Because Mr.
Dixon did not appeal either the 1980 or the 1996 RO
decision, they became final.
In November 2000, Mr. Dixon filed what was con-
strued as a request to reopen his 1996 PTSD claim. The
RO denied the request, again noting the character of Mr.
Dixon’s discharge from his first period of service and his
failure to provide new and material evidence of a verifi-
able stressor during his second period of service. Mr.
Dixon subsequently appealed the RO’s decision to the
Board. While his appeal was pending, he requested that
two additional issues be added to his claim—hepatitis C
and a skin condition related to exposure to Agent Orange.
In May 2004, the Board found that there was no new
and material evidence warranting the reopening of the
previously-denied claim. The Board further noted that
1 An honorable or general discharge awarded
under the DoD special discharge review program does not
remove a bar to benefits based on persistent and willful
misconduct unless a discharge review board determines
that the original discharge would be upgraded under
uniform standards meeting certain requirements. See 38
C.F.R. § 3.12(h)(2).
DIXON v. DVA 4
there was no evidence submitted disputing the character
of Mr. Dixon’s first discharge.
In October 2005, the RO denied compensation for
hepatitis C and a skin disorder as secondary to Agent
Orange exposure because of the character of Mr. Dixon’s
discharge.
Mr. Dixon appealed the 2004 Board decision to the
Veterans Court, raising several arguments that were
never raised before the Board. Specifically, Mr. Dixon
argued for the first time that he had incompetent counsel
at the time he was discharged from his first period of
service. He also argued that he was not informed of the
1980 RO decision and that as a result, he was not aware
of his appeal rights. Finally, he asserted that the VA
should have considered whether his PTSD affected his
judgment during his first enlistment. Because none of
these arguments had been raised before the Board, the
Veterans Court remanded for initial consideration by the
Board. In March 2008, the Board remanded the PTSD,
hepatitis C, and skin condition claims to the RO for
further development.
In July 2009, the RO issued a Supplemental State-
ment of the Case, again finding that no new and material
evidence had been submitted to reopen the PTSD claim
and continuing to deny the hepatitis C and skin condition
claims. The RO also found that the evidence failed to
show that Mr. Dixon had incompetent counsel and that
his claims file indicated that he was notified of the 1980
decision. Furthermore, the RO found no evidence that
Mr. Dixon’s PTSD affected his judgment during his first
period of service. As to hepatitis C and a skin disorder,
the RO found no indication in Mr. Dixon’s VA treatment
records for either, and noted that service connection for
5 DIXON v. DVA
either would be denied regardless because of the charac-
ter of Mr. Dixon’s discharge.
Mr. Dixon appealed to the Board, and the Board af-
firmed the RO’s decision. Specifically, the Board found
that the evidence submitted was not new and material
because it merely reflected Mr. Dixon’s current PTSD
symptoms; it did not show a change in discharge status or
that he was insane at the time he committed willful
misconduct. 2 The Board further held that evidence of
stressors during his second period of service was not
material because it was lay speculation on medical issues.
Regarding Mr. Dixon’s assertion that he was notified of
the 1980 decision, the Board applied the presumption of
regularity to determine that he did receive notice. The
Board also found that there was no evidence of current
hepatitis C or a skin disorder.
Mr. Dixon again appealed and on October 1, 2009, the
Veterans Court affirmed the Board’s decision. Before the
Veterans Court, Mr. Dixon argued that the Board erred in
several respects. First, Mr. Dixon argued that the “Board
improperly construed his statements that his second
period of service exacerbated his PTSD as incompetent
statements of medical causation rather than descriptions
of observable symptomatology.” Dixon, slip op. at 1. He
also asserted that the Board failed to comply with the
Veterans Court’s remand order, which he interpreted as
requiring an examination of the relationship between his
PTSD symptoms and the misconduct resulting in the
discharge from his first period of service. Additionally, he
2 If a person was insane at the time of commit-
ting an offense leading to the person’s court-martial,
discharge, or resignation, the person is not barred from
VA benefits based upon that period of service. 38 U.S.C.
§ 5303(b); 38 C.F.R. § 3.12(b).
DIXON v. DVA 6
asserted that the PTSD claim was inextricably inter-
twined with the hepatitis C and skin condition claims and
that as a result, those claims should be remanded too.
Finally, he asserted that the Board applied extraneous
considerations pertaining to an insanity determination,
contrary to Gardner v. Shinseki, 22 Vet. App. 415 (2009).
In affirming the Board, the Veterans Court noted that
the issue before it was whether Mr. Dixon had submitted
new and material evidence to reopen his original claim for
service-connected disability compensation for PTSD
resulting from experiences during his first period of
service. Therefore, Mr. Dixon’s lay statements concerning
aggravation were not relevant to the issue before the
court. However, the court did acknowledge that evidence
showing aggravation of pre-existing PTSD during Mr.
Dixon’s second period of service would relate to a new
claim based on aggravation under 38 U.S.C. § 1153.
The Veterans Court also noted that the duty to assist
does not arise until after there is new and material evi-
dence to reopen a previously-denied claim. Accordingly,
the court’s remand order did not require the VA to pro-
vide a retrospective medical opinion on whether Mr.
Dixon’s PTSD rendered him insane. The court further
found that the hepatitis C and skin disease claims were
not inextricably intertwined with the PTSD claim, and
that Mr. Dixon did not dispute the Board’s finding that
there was no evidence of current disability for either of
these claims. Finally, while the Veterans Court acknowl-
edged that the Board’s reference to knowing right from
wrong was “regrettably confusing,” the court noted that
this reference “does not detract from the Board’s assess-
ment that there was no medical evidence of insanity
during the period in question.” Dixon, slip op. at 4.
7 DIXON v. DVA
Mr. Dixon appealed the Veterans Court’s decision to
this court.
II. DISCUSSION
Our jurisdiction to review decisions by the Veterans
Court is limited. We have 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.” 38 U.S.C.
§ 7292(c). Absent a constitutional issue, we lack jurisdic-
tion to 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.” Id. § 7292(d)(2). We therefore
generally lack jurisdiction to review challenges to the
Board's factual determinations. See, e.g., Johnson v.
Derwinski, 949 F.2d 394, 395 (Fed. Cir. 1991).
Mr. Dixon argues that he should be found to have ser-
vice-connected PTSD. Though evidence of aggravation of
PTSD during Mr. Dixon’s second period of service might
be the basis for a new claim (see 38 U.S.C. § 1153), it is
not relevant to the question of whether Mr. Dixon submit-
ted new and material evidence regarding his PTSD claim
based upon his first period of service. Indeed, there is no
dispute that Mr. Dixon has been diagnosed with PTSD
and that the PTSD has been found to have been caused by
an in-service stressor that occurred during his first period
of service. The reason Mr. Dixon has not been granted
service-connected disability compensation for his PTSD is
that the character of his discharge from his first period of
service constituted a bar to the payment of benefits.
A veteran discharged “by reason of the sentence of a
general court-martial” is not entitled to VA benefits
DIXON v. DVA 8
unless “at the time of the commission of [the] offense . . .
that person was insane.” Id. § 5303(a)-(b). Because Mr.
Dixon did not appeal the RO’s 1996 determination that
the character of his discharge precluded payment of
benefits for his PTSD, the determination became final.
Id. § 7105(c). Thus, the issue before the Board and the
Veterans Court in the present appeal was whether Mr.
Dixon submitted new and material evidence warranting a
reopening and reconsideration of the 1996 denial. See id.
§ 5108.
Mr. Dixon does not challenge the validity or interpre-
tation of the applicable statutes and regulations. Rather,
Mr. Dixon essentially disputes the Board’s determination
that he did not submit new and material evidence show-
ing that he met the criteria for insanity under 38 U.S.C.
§ 5303(b). However, the issue of whether evidence is new
and material is a factual issue outside this court’s juris-
diction to consider. See id. § 7292(d)(2). This court is
without jurisdiction.
COSTS
Each party shall bear its own costs.
DISMISSED