Murphy v. Wilkie

983 F.3d 1313

• Court: Court of Appeals for the Federal Circuit
• Decided: December 21, 2020
• Docket: 19-2064
• Status: Published

Opinion

Case: 19-2064 Document: 59 Page: 1 Filed: 12/21/2020

United States Court of Appeals for the Federal Circuit ______________________

DAVID G. MURPHY, Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2019-2064 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 17-3080, Judge Michael P. Allen. ______________________

Decided: December 21, 2020 ______________________

CHRISTIAN ARTHUR MCTARNAGHAN, Chisholm Chisholm & Kilpatrick, Providence, RI, argued for claim- ant-appellant. Also represented by APRIL DONAHOWER, ZACHARY STOLZ, CHRISTOPHER J. CLAY; BARBARA J. COOK, Barbara J. Cook, Attorney at Law, Cincinnati, OH.

SHARI A. ROSE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, argued for respondent-appellee. Also represented by JEFFREY B. CLARK, MARTIN F. HOCKEY, JR., ROBERT EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK Case: 19-2064 Document: 59 Page: 2 Filed: 12/21/2020

SCADDEN, Office of General Counsel, United States Depart- ment of Veterans Affairs, Washington, DC. ______________________

Before LOURIE, CLEVENGER, and CHEN, Circuit Judges. CHEN, Circuit Judge. David G. Murphy, a veteran of the United States Army, appeals a decision from the Court of Appeals for Veterans Claims (Veterans Court) denying his claim for disability benefits. Mr. Murphy argues that the Veterans Court erred in determining that the Board of Veterans’ Appeals (Board) lacked jurisdiction over his claim for disability benefits due to his schizophrenia. We affirm. BACKGROUND Mr. Murphy served in the United States Army from December 1971 to February 1974. Since his separation from service, Mr. Murphy has suffered various conditions for which he has sought disability benefits from the De- partment of Veterans Affairs (VA). He first sought such relief from a VA regional office (RO) in February 2003 for post-traumatic stress disorder (PTSD); the RO denied this claim because Mr. Murphy lacked a PTSD diagnosis. Mur- phy v. Wilkie, No. 17-3080, 2019 WL 1029407, at *1 (Vet. App. Mar. 5, 2019). This decision became final. Though he lacked a PTSD diagnosis, a private doctor had diagnosed Mr. Murphy with paranoid type schizophrenia in 1982. Id. In October 2006, Mr. Murphy submitted another claim to the RO for various disabilities, including schizophrenia with anxiety, depression, and mood swings. Id. He also requested that the RO reopen his claim for PTSD. Id. The RO denied the claim for schizophrenia for failure to show nexus for service connection and declined to reopen the claim for PTSD for lack of material evidence. Id. From 2007 to 2012, the RO denied multiple requests by Mr. Mur- phy to reopen his claims for schizophrenia and PTSD, Case: 19-2064 Document: 59 Page: 3 Filed: 12/21/2020

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sometimes denying them separately and sometimes deny- ing them together. Id. 1 The claim at issue in this appeal involves a request to reopen filed by Mr. Murphy in February 2012 (2012 RTR). In this filing, Mr. Murphy stated, “Please take action to consider the following: Entitlement to service connection for PTSD,” J.A. 149, and under the section entitled “Reo- pening of previously denied disability,” id. at 150 (capitali- zation removed), Mr. Murphy listed only “PTSD,” id. In adjudicating this claim, the VA administered a medical ex- amination to Mr. Murphy in which the physician found no PTSD diagnosis but did note a diagnosis for schizophrenia. Murphy, 2019 WL 1029407, at *2. The RO therefore denied Mr. Murphy’s request to reopen his PTSD claim because he lacked a PTSD diagnosis. In December 2012, Mr. Murphy filed a Notice of Disa- greement (NOD) with the RO that contained a cover page stating that he disagreed with the RO’s decision on his “[e]ntitlement to service connection for post-traumatic stress disorder,” J.A. 179, and a handwritten attachment in which Mr. Murphy mentions “schizophrenia” and “PTSD” multiple times, see J.A. 180–81. In January 2013, the RO filed its Statement of the Case (SOC) and Mr. Mur- phy filed his appeal Form 9 and accompanying statement shortly after. Murphy, 2019 WL 1029407, at *2. The Form 9 included numerous mentions of both “PTSD” and “schizophrenia,” J.A. 203–09, like Mr. Murphy’s NOD, and specifically on the cover sheet, Mr. Murphy mentions that

1 In August/September 2007 and September 2008, Mr. Murphy underwent two VA medical examinations. Murphy, 2019 WL 1029407, at *1. Mr. Murphy argued to the Veterans Court that this evidence was never addressed by the VA. Id. If this contention is true, nothing in our decision today precludes Mr. Murphy from submitting a new request to reopen to the VA citing this evidence. Case: 19-2064 Document: 59 Page: 4 Filed: 12/21/2020

he is seeking to appeal his “PTSD/Schizo-Affective Bipolar Type Issues,” id. at 203. Upon receipt of the Form 9, the RO determined in February 2014 that, in addition to seek- ing appeal of the RO’s denial of his 2012 RTR for his PTSD claim, Mr. Murphy was also seeking, through his Form 9, to reopen his previously denied benefits claim for schizo- phrenia. The RO, however, denied this request to reopen Mr. Murphy’s schizophrenia claim in July 2014 for lack of new and material evidence. Murphy, 2019 WL 1029407, at *3. Mr. Murphy did not appeal this denial. Id. The Board heard testimony for Mr. Murphy’s PTSD ap- peal in September 2014, and in a February 2015 decision, the Board remanded the PTSD claim for further develop- ment. Id. In May 2015, the RO maintained its denial and this decision was then reviewed by the Board on appeal. Id. In denying this appeal, the Board explained the follow- ing with regard to Mr. Murphy’s schizophrenia claim: The Board notes that generally the scope of a claim of service connection for a specific psychiatric en- tity (here, PTSD) encompasses all psychiatric enti- ties shown, however diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, prior fi- nal rating decisions separately denied service con- nection for psychiatric disabilities other than PTSD, and such other psychiatric disabilities [like Mr. Murphy’s schizophrenia] are not the subject of the instant claim. A July 2014 rating decision de- clined to reopen a claim of service connection for schizophrenia with anxiety, depression, and mood swings; the Veteran did not file a notice of disagree- ment with that rating decision, and that matter is not before the Board. J.A. 259. Mr. Murphy appealed the Board’s decision to the Vet- erans Court, arguing that the Board should have consid- ered his schizophrenia claim. The Veterans Court Case: 19-2064 Document: 59 Page: 5 Filed: 12/21/2020

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concluded that “[t]he Board clearly and appropriately at- tempted to police its jurisdiction.” Murphy, 2019 WL 1029407, at *3 (citation omitted). Primarily, the Veterans Court reasoned that Clemons, which it characterized as “prevent[ing the] VA from denying a claim solely because the claimant incorrectly labeled an existing underlying condition that [the] VA would have discovered with further developing the claim,” id. at *5, does not apply because “Clemons itself draws clear distinctions between determin- ing the scope of claims in the context of initial claims ver- sus that of reopened claims,” id. (citing Clemons, 23 Vet. App. at 7–9). Because Mr. Murphy’s claim was a request to reopen, as opposed to an initial claim, the Veterans Court determined that the reasoning of Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) applied. Id. Applying Boggs, the Veterans Court held that the Board correctly found it lacked jurisdiction over the schizophrenia claim, properly respecting the finality of previous agency decisions. See id. In an alternative holding, however, the Veterans Court ap- plied Clemons and concluded that Mr. Murphy did not have “reasonable expectations of reopening both the schizophre- nia and PTSD claims, at least not in February 2012” when he filed his request to reopen. Id. (citation omitted). The Veterans Court further explained, “In his February 2013 Form 9 and accompanying statement, [Mr. Murphy] demonstrated a convincing understanding of the schizo- phrenia and PTSD claims as separate claims and inde- pendent bases for service connection.” Id. (citation omitted). Mr. Murphy appeals this decision to our court. 2

2 Relevant to this appeal, though Mr. Murphy is now represented by counsel, he was not represented by counsel at the time of filing of his 2012 RTR and through much of the proceedings at the VA. Case: 19-2064 Document: 59 Page: 6 Filed: 12/21/2020

DISCUSSION Our court has limited jurisdiction to review Veterans Court decisions. We “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regu- lation as applied to the facts of a particular case.” 38 U.S.C § 7292(d)(2). This court does, however, have juris- diction to “decide all relevant questions of law, including interpreting constitutional and statutory provisions.” § 7292(d)(1). We review legal determinations of the Veter- ans Court de novo. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991). Mr. Murphy alleges legal error in the Veterans Court’s decision to apply the reasoning of Boggs as opposed to Clemons. Appellant’s Br. at 8. We agree with Mr. Murphy in this respect. But because the Veterans Court decision included an alternative holding based on the reasoning of Clemons, we affirm. For sake of background, we begin with a brief overview of Boggs and Clemons, two opinions related to determining the scope of a veteran’s claim. Mr. Boggs was a veteran who filed a claim for a left ear condition at the VA in 1955. Boggs, 520 F.3d at 1332. Following a diagnosis of conduc- tive hearing loss, the RO denied the claim for lack of a nexus to service. Id. Almost 50 years later, Mr. Boggs filed another application for left ear hearing loss following a di- agnosis of sensorineural hearing loss. 3 Id. Treating this claim as new and separate from the previous hearing loss claim, the RO denied this claim for lack of service connec- tion. Id. On appeal, the Board found that the newly

3 Somewhat critical to the holding of Boggs, conduc- tive hearing loss affects the middle or outer ear while sen- sorineural hearing loss affects the inner ear or auditory nerve; the two conditions also tend to result from different causes. See 520 F.3d at 1332–33. Case: 19-2064 Document: 59 Page: 7 Filed: 12/21/2020

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diagnosed sensorineural hearing loss was cumulative of the conductive hearing loss, and therefore, considering the claims as one, it denied the second filing as a request to reopen finding no new and material evidence. Id. at 1333. The Veterans Court, on appeal from the Board, held that it was correct to treat the two diagnoses together as one claim as they both involved loss of hearing. Id. We reversed and remanded, reasoning that the “‘factual basis’ of a claim for purposes of 38 U.S.C. § 7104(b) is the veteran’s [actual] dis- ease or injury rather than the symptoms of the veteran’s disease or injury.” Id. at 1335. We explained that the proper reading of 38 U.S.C. § 7104(b), and the test there- under, is that “claims based on separate and distinctly di- agnosed diseases or injuries must be considered separate and distinct claims.” Id. at 1336. As applied to Mr. Boggs’s case, the Veterans Court was to determine on remand whether Mr. Boggs’s hearing conditions were based upon different diagnosed diseases or injuries, id. at 1337, such that the second-filed claim would be considered new, and not subject to the more demanding new and material evi- dence standard of a request to reopen. Of note, we ex- plained that by treating different diagnosed disease or injury claims distinctly, agency decisions are still afforded the respect of finality without unfairly precluding veterans from pursuing claims for distinct diseases or injuries. Id. A year later, the Veterans Court decided Clemons. In that case, Mr. Clemons filed a benefits claim for mental disability, naming PTSD and listing myriad symptoms re- lating to his mental illness. Clemons, 23 Vet. App. at 4. The RO, and later the Board, denied Mr. Clemons’s claim, explaining that he lacked a confirmed diagnosis of PTSD, even though the VA had diagnosed Mr. Clemons with an- other mental disorder, schizoid personality disorder. Id. The Veterans Court reversed on appeal, explaining that it essentially violated principles of fairness for the VA to limit Mr. Clemons’s claim just to PTSD, because veterans usu- ally lack medical expertise and are thus not competent to Case: 19-2064 Document: 59 Page: 8 Filed: 12/21/2020

diagnose themselves. See id. at 5–6. The Veterans Court concluded that the VA had to consider whether Mr. Clemons’s schizoid personality disorder entitled him to benefits. Id. at 6. In reaching this holding, the Veterans Court explained that the VA must look to all possible dis- eases that the veteran could have reasonably expected to have included in his claim. Id. at 5. Particularly, the Vet- erans Court explained that in conducting this analysis, the VA “should construe a claim based on the reasonable ex- pectations of the non-expert, self-represented claimant and the evidence developed in processing that claim.” Id. The Clemons decision also included a discussion of Boggs: Boggs stands for the proposition that, if there is a final agency decision denying a claim based on a particular diagnosis, and subsequently a new and different diagnosis is submitted for [the] VA’s con- sideration, the second diagnosis must be consid- ered factually distinct from the first and must be considered to relate to a separate claim. Id. at 8. Further, the Veterans Court distinguished its holding in Clemons from concerns in Boggs for finality, by explaining that no finality concerns were involved in this case because no previous and final agency decision exists when the scope of an initial claim is involved, and “the ad- vantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits.” Id. at 8. In short, both Boggs and Clemons present principles to use in determining the scope of a veteran’s claim. Boggs teaches that when a veteran has two diagnoses with sepa- rate factual bases, these diagnoses should be treated as two separate claims, i.e., two requests for benefits that the VA must consider as independent bases for benefits. Boggs does not require, however, that these claims maintain Case: 19-2064 Document: 59 Page: 9 Filed: 12/21/2020

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separate procedural postures—separate claims can be con- sidered by the VA in lockstep. Clemons, though not binding on this court, provides valuable guidance as to how the VA should interpret filings from a veteran: in accordance with the general pro-veteran canon, Clemons explains that the VA shall afford lenity to a veteran’s filings that fail to enu- merate precisely the disabilities included within the bounds of a claim. It further teaches that this goal is best accomplished by looking to the veteran’s reasonable expec- tations in filing the claim and the evidence developed in processing that claim. Thus, while both Boggs and Clemons speak to claim scope, they are not inherently con- flicting and do not address the same inquiries. The Veterans Court erred when it concluded that Mr. Murphy’s “reliance on Clemons is misplaced because Clemons itself draws clear distinctions between determin- ing the scope of claims in the context of initial claims ver- sus that of reopened claims.” Murphy, 2019 WL 1029407, at *5 (citation omitted). Though we do not read Clemons to require such a holding, insofar as the Veterans Court here, and the government, see Appellee’s Br. at 16, seek to limit the holding of Clemons by suggesting that it cannot apply to requests to reopen in view of Boggs, such a limitation is improper. This conclusion aligns with the well-established princi- ple that the VA is required “to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (quoting H.R. Rep. No. 100-963, at 13 (1988), re- printed in 1988 U.S.C.C.A.N. 5782, 5795). Our cases have understood this mandate to mean that “the VA must deter- mine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of [the claim’s label],” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and we have held that such a requirement extends to all pro se pleadings and filings submitted to the VA, see Szemraj v. Principi,, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Case: 19-2064 Document: 59 Page: 10 Filed: 12/21/2020

see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Though we have not previously addressed the particular circumstances at issue here as to reopened claims, the Clemons lenient-claim-scope rule as applied to a pro se veteran’s request to reopen falls squarely within the purview of this mandate. Szemraj, 357 F.3d at 1373 (“Roberson is not limited to its particular facts.”). The gov- ernment attempts to draw a meaningful distinction be- tween “the duty to sympathetically read a pro se claimant’s pleadings [including requests to reopen]” and the applica- tion of the Clemons rule to determine if a veteran’s “claim necessarily encompasse[s] other mental health conditions,” see Appellee’s Br. at 17, but we see none. Clemons is but one application of the general lenity rule established by Hodges, Roberson, and their doctrinal progeny. As we explained in Shea v. Wilkie, the scope of a pro se claimant’s claim may be determined “indirectly through ex- amination of evidence to which those documents them- selves point when sympathetically read.” 926 F.3d 1362, 1368 (Fed. Cir. 2019). Clemons provides further gloss as to what should inform the VA’s review of a pro se veteran’s claim filing—a veteran’s reasonable expectations. This consideration stems directly from the regulation governing the VA’s identification of and actions in response to re- quests for benefits. See 38 C.F.R. § 3.155(a)–(b) (2020) (in- dicating that a veteran’s “desire to file” for benefits is a key component of filing a claim); § 3.155(d) (explaining that the VA, in acting upon a claim, considers all issues “reasonably within the scope” of the claim that may entitle the veteran to benefits); see also Ingram v. Nicholson, 21 Vet. App. 232, 256 (2007) (“[W]e note that the duty to sympathetically read must be based on reasonable expectations of a pro se claimant . . . .”). Thus, the proper inquiry for the VA in re- viewing a pro se claimant’s request to reopen filing is to determine what diagnoses, conditions, or illnesses can rea- sonably be understood as included in the request, this Case: 19-2064 Document: 59 Page: 11 Filed: 12/21/2020

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inquiry informed by, but not limited to, looking to what the particular veteran could have reasonably expected to have included in the filing of such a request and the evidence of record. Lacoste v. Wilkie, 775 F. App’x 1007, 1012 (Fed. Cir. 2019) (explaining the role of intent in determining what conditions should be considered within the scope of a claim). We emphasize that this inquiry does not require that the VA embark on a fishing expedition to explore any potential condition which the record may support as a basis for benefits, nor does the VA have to attempt to read the mind of the claimant; the VA need only explore those con- ditions which may be reasonably considered within the scope of the claim. See Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2020) (holding that a veteran’s claim must identify, “at least at a high level of generality,” the sick- ness, disease, or injuries for which compensation is sought and that 38 C.F.R. § 3.159, that is, the VA’s duty to assist in developing claims, only applies once the VA “compre- hends the current condition [up]on which the claim is based”). A main concern raised by the government and by the Veterans Court with respect to applying the Clemons leni- ent-claim-scope rule to a request to reopen filing is that do- ing so “ignores important principles regarding the finality of decisions.” Appellee’s Br. at 16; see also Murphy, 2019 WL 1029407, at *5 (“[W]e must concern ourselves with pre- serving ‘the finality of agency decisions . . . .’” (quoting Clemons, 23 Vet. App. at 8)). But we see no reason why applying the Clemons lenient-claim-scope rule, that is, that the VA must look to all possible diseases or injuries for which the veteran could have reasonably expected to have included in the filing, to a request to reopen in any way disrupts the finality of agency decisions. To the contrary, if the VA construes a request to reopen liberally under the guidance of Roberson and Clemons and determines that it refers to two distinct diseases or injuries, both of which have been previously subjects of final agency decisions, the Case: 19-2064 Document: 59 Page: 12 Filed: 12/21/2020

VA’s only duty is to consider whether the claimant has pre- sented new and material evidence as to both respective claims, as contemplated by 38 U.S.C. § 5108. 4 The govern- ment concedes that Congress has explicitly provided the new and material evidence standard as a limited exception to the rule of finality. Appellee’s Br. at 15. In sum, the Clemons lenient-claim-scope rule applies to requests to reopen and Boggs does not require otherwise. Additionally, we note that the Veterans Court has previ- ously applied this same understanding. See Radu v. Shinseki, No. 08-2692, 2010 WL 2706225 (Vet. App. July 8, 2010). Utilizing the same reasoning we espouse today, the Veterans Court distinguished Clemons from Boggs in ex- plaining how to construe Mr. Radu’s request to reopen: In this case, the appellant concedes that the RO de- nied his claims for compensation for both hearing loss and tinnitus in 1977. Unlike Mr. Boggs, he is not arguing that he was not required to submit new and material evidence to reopen the RO’s 1977 fi- nal decision regarding tinnitus. Rather, he con- tends that the scope of his 2002 reopened claim was broad enough to encompass both tinnitus and hear- ing loss. The substance of the appellant’s argu- ment goes to his intent when he filed his reopened claim in 2002. Clemons, 23 Vet. App. at 5 (‘A claim- ant’s intent in filing a claim is paramount to con- struing the breadth of the claim.’). Boggs, which is limited to the issue of determining when two claims have been decided on the same factual basis, is not

4 One other statutory exception exists to the finality of VA decisions—“the grounds of clear and unmistakable error.” 38 U.S.C. § 5109A. The hypothetical scenario pre- sented here assumes the absence of any claim from the vet- eran of clear and unmistakable error. See Boggs, 520 F.3d at 1334. Case: 19-2064 Document: 59 Page: 13 Filed: 12/21/2020

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helpful in determining the appellant’s intent at the time he filed his reopened claim. Accordingly, the Secretary’s reliance on Boggs is misplaced. Id. at *8. 5 Turning to the facts of Mr. Murphy’s case, the proper consideration for the VA is whether, under Clemons, Mr. Murphy’s request to reopen filing, i.e., the 2012 RTR, should be interpreted as reasonably encompassing a re- quest to reopen his schizophrenia claim. The Veterans Court, in an alternative holding, explained that, after con- sidering Mr. Murphy’s expectations in filing the 2012 RTR, it was unconvinced “that he had reasonable expectations of reopening both the schizophrenia and PTSD claims, at least not in February 2012.” Murphy, 2019 WL 1029407, at *5 (citation omitted). The Veterans Court noted in sup- port of this conclusion that Mr. Murphy’s PTSD and schiz- ophrenia had been the subjects of at least five other agency final decisions, each treating the illnesses as separate po- tential bases for benefits. Id. In light of this history, the Veterans Court explained that Mr. Murphy demonstrated an understanding that the conditions would be addressed separately and, therefore, the VA’s treatment of the condi- tions separately here was reasonable. See id. Because the Veterans Court applied the proper legal standard in

5 Similarly, the government conceded at oral argu- ment that had Mr. Murphy filed a request to reopen that described that he was seeking reconsideration of his claims related to his mental health generally, the only reasonable reading would be that he was seeking to reopen both his PTSD and his schizophrenia claims. See Oral Arg. at 27:10–28:08. This demonstrates the exact reasoning of Clemons—when a veteran fails to delineate specifically the bounds of the claim in a filing, the VA has a duty, particu- larly for pro se veterans, to construe the filing liberally and in a pro-veteran manner. Case: 19-2064 Document: 59 Page: 14 Filed: 12/21/2020

reaching its alternative holding based on Clemons, we do not disturb this conclusion. 6 Consequently, Mr. Murphy’s request to reopen cannot be construed as seeking to reopen his claim for schizophrenia. The Board, and the Veterans Court, thus properly determined that it lacked jurisdiction over Mr. Murphy’s claim for schizophrenia because it was not before it. CONCLUSION We have considered Mr. Murphy’s remaining argu- ments and are unpersuaded. On the basis of the Veterans Court alternative holding, we affirm. AFFIRMED COSTS No costs.

6To be clear, we hold only that the Veterans Court ap- plied the proper legal standard, i.e., Clemons, in reaching its decision in its alternative holding. The issue of whether the Clemons inquiry is one of law, of fact, or a question of law and fact, has not been briefed by the parties and is not currently before the court.