Diggs v. Shulkin
703 F. App'x 972
| Fed. Cir. | 2017Background
- Diggs served in the Army in 1970, was hospitalized for psychiatric symptoms (including claims of hearing voices and a psychotic break) and was medically discharged the same year for unfitness.
- From 1970s onward Diggs repeatedly sought VA service connection for schizophrenia; early claims were denied with the Board finding the condition preexisted service and was not aggravated by service.
- Diggs repeatedly sought to reopen his claim; after a 1994 claim and timely Notice of Disagreement the Regional Office issued a November 1994 Statement of the Case (SOC) continuing denial.
- In March and May 1995 VA field-examiner reports recorded that Diggs had a claim pending for service connection; Diggs did not personally file a written substantive appeal in 1995.
- VA granted service connection in 2004 with an effective date tied to Diggs’ 1997 claim; Diggs challenged the 1997 effective date, arguing the March 1995 examiner report constituted a timely substantive appeal of the 1994 SOC.
- The Board and the Veterans Court rejected that argument, finding no substantive appeal or expression of disagreement in the 1995 report; the Federal Circuit affirmed, holding the Veterans Court applied the correct legal standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the March 1995 VA field-examiner report constituted a timely substantive appeal of the Nov. 1994 SOC | Diggs: the examiner’s statement that he had filed a claim and had a claim pending shows desire to appeal and thus qualifies as a substantive appeal under Rivera | Secretary: the 1995 report contains no expression of disagreement or desire to appeal and lacks the specificity required by §7105(d)(3) | Court: No substantive appeal; report does not reflect disagreement or desire to appeal, so Rivera need not be applied |
| Whether the Veterans Court applied an improper four‑corners test and ignored other records in the file | Diggs: Board improperly confined to the four corners of the March 1995 document and should have construed filings liberally and considered all records | Secretary: no filing was made by Diggs in 1995; liberal construction rules do not apply where there is no filing to construe | Court: No error—there was no filing to construe; Douglas inapplicable because claimant did not file an appeal |
| Whether Rivera v. Shinseki required a different analysis than Gibson v. Peake | Diggs: Rivera means less specificity can suffice and the examiner’s statement should be read as an appeal | Secretary: Rivera does not apply because the report shows no disagreement or desire to appeal as required by cases like Gibson | Court: Gibson’s requirement of a showing of disagreement is controlling here; Rivera not implicated because no disagreement was present |
| Whether the Board failed to give notice of inadequacy of the 1995 "appeal" under 38 C.F.R. §20.203 | Diggs: Board should have notified him that any purported 1995 appeal was inadequate | Secretary: There was no substantive appeal, so no notice requirement arose | Court: No need to address notice because no appeal was filed; argument unpersuasive |
Key Cases Cited
- Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011) (less specificity may suffice where RO decision turns on a single, obvious issue)
- Willsey v. Peake, 535 F.3d 1368 (Fed. Cir. 2008) (Federal Circuit jurisdictional principles re review of Veterans Court questions of law)
- Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (de novo review of statutory/regulatory interpretations by Veterans Court)
- Singleton v. Shinseki, 659 F.3d 1332 (Fed. Cir. 2011) (limits on Federal Circuit review of Veterans Court factual findings)