Diggs v. Shulkin

703 F. App'x 972
CourtCourt of Appeals for the Federal Circuit
DecidedJuly 14, 2017
Docket2016-2243
StatusUnpublished

This text of 703 F. App'x 972 (Diggs v. Shulkin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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

Opinion

Reyna, Circuit Judge.

Woodrow Diggs appeals a decision of the Court of Appeals 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 instructor. 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.

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 history 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 “aggra *974 vation 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 evidence as reflecting only continuance during service of Mr. Diggs’ preservice psychiatric problems, including hallucinations. Id. The Board also found that “any change in his condition was within the limits of normal progression of the preser-vice 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 Examination 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 serviee-conneetion for his mental condition and his claim is presently in the Veterans Court of Appeals.” J.A. 1545 (emphasis added).

In November 1997, Mr. Diggs again requested to reopen 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.

On May 8, 2003, Mr. Diggs received a medical examination 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 *975 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. § 7292

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703 F. App'x 972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diggs-v-shulkin-cafc-2017.