Schmidt v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRED B. SCHMIDT, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7178
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-0877, Chief Judge Bruce E.
Kasold.
______________________
Decided: November 7, 2013
______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, for claimant-appellant.
DOMENIQUE KIRCHNER, Senior Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. On the brief were STUART F. DELERY, Acting
Assistant Attorney General, and JEANNE E. DAVIDSON,
Director, and MELISSA M. DEVINE, Trial Attorney. Of
2 SCHMIDT v. SHINSEKI
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel and LARA K. EILHARDT, Attor-
ney, United States Department of Veterans Affairs, of
Washington, DC.
______________________
Before RADER, Chief Judge, LOURIE, and O’MALLEY,
Circuit Judges.
PER CURIAM.
Fred B. Schmidt, a veteran of the United States Air
Force, seeks a March 1970 effective date for his service-
connected post-traumatic stress disorder (PTSD). The
Board of Veterans’ Appeals (Board) denied this effective
date. The United States Court of Appeals for Veterans
Claims (Veterans Court) affirmed the Board’s denial.
Because the Veterans Court’s decision contains no re-
versible error, this court affirms.
I.
Mr. Schmidt served on active duty in the United
States Air Force from July 1967 to March 1970. He filed
an initial claim for disability compensation regarding a
chronic nervous condition on March 6, 1970. J.A. 13–14.
A Department of Veterans Affairs Regional Office (RO)
denied his claim. The Notice letter sent to Mr. Schmidt
stated:
To establish entitlement to this benefit, the evi-
dence must show that you have a disability in-
curred in or aggravated by service, in line of duty.
Your nervous condition is not a disability for
which compensation may be paid. Therefore,
compensation is not payable.
J.A. 16. The letter included a notation referring to an
“appeal paragraph” enclosure. J.A. 16. However, the
appeal paragraph itself is not included in the record. Mr.
Schmidt did not appeal the RO’s denial.
SCHMIDT v. SHINSEKI 3
In September 1999, nearly thirty years later, Mr.
Schmidt filed a claim for compensation for bipolar depres-
sion. J.A. 17–20. The RO denied the claim. Mr. Schmidt
filed another claim for compensation in August 2001, this
time for PTSD, with major depressive disorder, dysthymic
disorder, and panic disorder without agoraphobia. J.A.
22. The RO granted his claim, initially assigning Mr.
Schmidt a 50% disability rating effective from April 14,
2001. J.A. 23. The RO later increased his disability
rating to 100% effective December 20, 2002. J.A. 31.
Mr. Schmidt continued to contest the effective date for
his disability and appealed the RO’s decision to the Board.
In response, the Board made his disability rating retroac-
tive to September 20, 1999, but denied Mr. Schmidt’s
request for a March 1970 effective date. J.A. 37–44.
After an initial appeal to the Veterans Court and remand,
the Board again denied Mr. Schmidt’s request for a March
1970 effective date in an opinion dated November 20,
2009. J.A. 52–59.
In the 2009 opinion, the Board observed that the RO
sent Mr. Schmidt its rating decision including an “appeals
paragraph” regarding his appellate rights on March 31,
1970, and Mr. Schmidt did not appeal that decision. J.A.
56. While Mr. Schmidt claimed that he had not received
adequate notice of his right to appeal, the Board reasoned
that the mere assertion of non-receipt of notice does not
rebut the presumption of regularity. J.A. 56. Relying on
this presumption, the Board concluded that the RO had
provided Mr. Schmidt with adequate notice of his appel-
late rights pursuant to 38 C.F.R. § 3.103. J.A. 56. Be-
cause Mr. Schmidt had not demonstrated that the March
1970 rating decision contained clear and unmistakable
error, the Board found that decision was final, and denied
his request for an earlier effective date. J.A. 57.
Mr. Schmidt appealed the Board’s opinion to the Vet-
erans Court. In his appeal, Mr. Schmidt initially raised
4 SCHMIDT v. SHINSEKI
two arguments that are relevant here: (1) the RO’s rea-
sons for denying his 1970 claim were not specific enough
and thus violated 38 C.F.R. § 3.103 and the Due Process
Clause of the Fifth Amendment; and (2) the Board erred
by applying the presumption of regularity to conclude
that he received proper notice regarding the time and
method to appeal the March 1970 rating decision. How-
ever, during oral argument before the Veterans Court,
Mr. Schmidt’s counsel expressly withdrew the second
argument concerning the presumption of regularity and
stated he was only pursuing his first argument. Oral Arg.
at 1:25-2:40, Schmidt v. Shinseki, No. 10-0877 (Vet. App.
argued May 10, 2012), available at
http://www.uscourts.cavc.gov/oral_arguments_audio.php.
The Veterans Court subsequently affirmed the
Board’s decision. Schmidt v. Shinseki, No. 10-0877, 2012
U.S. App. Vet. Claims LEXIS 1301 (June 27, 2012). In
response to Mr. Schmidt’s first argument, the Veterans
Court noted that the alleged vagueness of the 1970 Notice
letter was not reasonably raised by the record. Id. at *5.
The Veterans Court also stated that the law in 1970 did
not require a detailed explanation for the decision. Id.
Finally, the Veterans Court did not consider Mr.
Schmidt’s second argument except to note that counsel
“explicitly withdrew” it. Id. at *2.
Mr. Schmidt appeals the Veterans Court’s decision.
This court has jurisdiction under 38 U.S.C. § 7292.
II.
This court has sharply circumscribed jurisdiction to
review decisions of the Veterans Court. Absent a consti-
tutional issue, 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.” 38
U.S.C. § 7292(d)(2). Nevertheless, this court may “decide
any challenge to the validity of any statute or regulation
or any interpretation thereof . . . and [] interpret constitu-
SCHMIDT v. SHINSEKI 5
tional and statutory provisions, to the extent presented
and necessary to a decision.” 38 U.S.C. § 7292(c). Ques-
tions of law are reviewed de novo. 38 U.S.C. § 7292(d)(1).
III.
Mr. Schmidt argues that the Veterans Court erred in
two respects. First, he contends that the Veterans Court
improperly applied an issue exhaustion requirement to
his “vagueness” argument. Second, he alleges that the
Veterans Court erroneously applied the presumption of
regularity. Neither argument is persuasive.
Regarding issue exhaustion, Mr. Schmidt argues that
the imposition of an issue exhaustion requirement by the
Veterans Court conflicts with the rule set forth in Sims v.
Apfel, 530 U.S. 103, 111–12 (2000). In that case, the
Supreme Court held, in a plurality opinion, that issue
exhaustion in Social Security Administration proceedings
is inappropriate because they are inquisitorial and non-
adversarial. Id. However, this court need not decide the
applicability of Sims to this proceeding. Even assuming
Mr. Schmidt is correct that Sims applies, his argument is
premised on the Veterans Court actually imposing an
issue exhaustion requirement. That premise is incorrect.
Nothing in the Veterans Court’s opinion suggests it
applied an issue exhaustion requirement. Rather, the
Veterans Court considered the record and concluded that
it failed to reasonably raise the vagueness issue com-
plained of by Mr. Schmidt. See Robinson v. Shinseki, 557
F.3d 1355, 1361 (Fed. Cir. 2009) (“[C]laims which have no
support in the record need not be considered by the
Board.”). The Veterans Court then discussed the re-
quirements for RO notices of denials as of 1970 and
concluded that the law at that time did “‘not require that
the RO’s reason for denying the claim be ultimately
correct or thoroughly explained, only that it be included in
the notice.’” Schmidt, 2012 U.S. App. Vet. Claims LEXIS
1301, at *5 (quoting Fournier v. Shinseki, 23 Vet. App.
6 SCHMIDT v. SHINSEKI
480, 486 (2010)). Here, it is uncontroverted that Mr.
Schmidt received a Notice letter stating “Your nervous
condition is not a disability for which compensation may
be paid.” J.A. 16.
The Veterans Court did comment on the failure of Mr.
Schmidt’s counsel to argue the alleged vagueness of the
RO’s decision before the Board. But cautioning Mr.
Schmidt’s counsel against piecemeal litigation is not the
same as requiring issue exhaustion. Indeed, the Veterans
Court did not base its judgment on counsel’s failure to
previously raise this argument. It decided the issue on
the merits.
Mr. Schmidt’s next contention that the Veterans
Court erred by affirming the Board’s use of the presump-
tion of regularity is similarly misplaced. The Veterans
Court did not address Mr. Schmidt’s presumption of
regularity argument because Mr. Schmidt expressly
withdrew it. And contrary to Mr. Schmidt’s assertions,
the argument he briefed and then withdrew before the
Veterans Court is the same as that which he now advanc-
es. The following colloquy between Mr. Schmidt’s counsel
and Judge Kasold demonstrates as much:
[COUNSEL:] Mr. Schmidt would like to withdraw
a portion of his argument relative to the provi-
sions of 3.103 as it existed in 1970 as it relates to
the notice of appellate rights and limit his argu-
ment only as to the reasons for the decision. In
other words, we will not proceed on the basis of
lack of notice of appellate rights based on the ref-
erence to appellate, excuse me, appeal paragraph
as argued in our brief.
[CHIEF JUDGE Kasold:] So the only issue you
are going to discuss is whether or not you were
given sufficient information as to the reason it
was denied?
SCHMIDT v. SHINSEKI 7
[COUNSEL:] That’s correct your Honor, and the
due process argument.
[CHIEF JUDGE Kasold:] Alright.
[COUNSEL:] Mr. Schmidt relies on the plain lan-
guage of 38 C.F.R. 3.103 as it existed in 1970
which required the VA’s Notice of disallowance of
a claim to include three specific things: First the
reason for the decision, second the claimant’s
right to initiate the appeal by filing a notice of
disagreement, and third, the time limits which
such notice for appeal must be filed.
[CHIEF JUDGE Kasold:] Just to be clear, the
second and third you’re no longer arguing?
[COUNSEL:] That’s correct your Honor.
Oral Arg. at 1:25-2:40, Schmidt v. Shinseki, No. 10-0877
(Vet. App. argued May 10, 2012), available at
http://www.uscourts.cavc.gov/oral_arguments_audio.php.
In view of Mr. Schmidt’s express withdrawal of his
argument before the Veterans Court, this court does not
consider it appropriate to entertain the argument for the
first time on appeal. Forshey v. Principi, 284 F.3d 1335,
1358 (Fed. Cir. 2002) (en banc), superseded on other
grounds by statute, Veterans Benefits Act of 2002, Pub. L.
No. 107-330, § 402, 116 Stat. 2820, 2832; see also
Emenaker v. Peake, 551 F.3d 1332, 1339 (Fed. Cir. 2008)
(“[B]ecause it would be imprudent for us to address the
issue without the benefit of its having been properly
presented to, and decided by, the Veterans Court, we
decline to address the issue in the first instance.”); Car-
bino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999); 38 U.S.C.
§ 7261 (“[T]he Court of Appeals for Veterans Claims, to
the extent necessary to its decision and when presented,
shall (1) decide all relevant questions of law . . . .”) (em-
phasis added). In fact, it is highly inappropriate for
8 SCHMIDT v. SHINSEKI
counsel to withdraw an issue in the trial court and then
reassert it here.
IV.
For the foregoing reasons, this court concludes that
the Veterans Court did not err in affirming the Board’s
denial of the March 1970 effective date. The Veterans
Court’s decision is therefore affirmed.