Anderson v. Shulkin
713 F. App'x 1005
| Fed. Cir. | 2017Background
- Roger A. Anderson, Army veteran who served 1967–1970 with Vietnam service and presumed Agent Orange exposure.
- July 2001: Anderson filed for service connection for Type 2 diabetes and hypertension; RO granted service connection effective July 9, 2001.
- July 2011: Anderson filed for service connection for a cardiac condition; October 2011 RO denied (no clinical diagnosis); he did not appeal, so that decision became final.
- November 2012: Anderson sought to reopen a heart-disease claim; RO granted service connection for ischemic heart disease with a 100% rating and assigned an effective date of November 9, 2012 (date of reopening).
- Anderson appealed the effective-date decision to the Board, which denied an earlier effective date; the Veterans Appeals Court affirmed. Anderson appealed to this court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Anderson’s 2001 submissions amounted to a claim for service‑connected heart disease | Anderson: 2001 diabetes/hypertension submissions implicitly included heart disease; thus earlier effective date | Government/Board: No express or implied claim for heart disease in 2001; later reopening date controls | Court: Factual finding that 2001 did not constitute a heart‑disease claim is not reviewable here; appeal dismissed for lack of jurisdiction |
| Whether the Board failed to sympathetically construe Anderson’s filings | Anderson: Board should have construed 2001 materials as a heart claim | Board: It properly considered and found no expressed intent to claim heart disease | Court: Whether Board satisfied sympathetic‑construction duty is a factual/board‑level matter not subject to this court’s review |
| Whether evidence was in equipoise entitling Anderson to benefit of the doubt | Anderson: Equivocal evidence should be resolved in his favor | Board/Veterans Court: Determined evidence was not in equipoise | Court: That factual determination is nonreviewable here |
| Applicability of Nehmer‑related regulations to secure an earlier effective date | Anderson: Nehmer regs should apply if an earlier claim existed | Board: Nehmer regs apply only if a heart claim was filed before Aug 2010; earliest heart claim was July 2011 | Court: Application turns on the factual question of when a heart claim was filed—nonreviewable here |
Key Cases Cited
- Butler v. Shinseki, 603 F.3d 922 (Fed. Cir.) (factual findings about when a disability was claimed are not reviewable by this court)
- Ellington v. Peake, 541 F.3d 1364 (Fed. Cir.) (court lacks jurisdiction to review whether Board satisfied duty to sympathetically construe a veteran’s claim)
- Ferguson v. Principi, 273 F.3d 1072 (Fed. Cir.) (court cannot review factual determinations that the evidence is not in equipoise)