Terrance D. Massie v. Eric K. Shinseki
2011 U.S. Vet. App. LEXIS 2729
| Vet. App. | 2011Background
- Massie appeals a May 2009 Board denial of an earlier effective date than April 4, 2001, for a 100% disability rating for varicose veins.
- Massie originally received 50% for left leg varicose veins; rating increased to 100% effective April 4, 2001, following VA development.
- Massie filed an increased rating claim on April 4, 2001; a May 1999 letter from VA physician Dr. Wesselius discussed chronic venous insufficiency.
- Massie’s 2006–2007 pleadings argued an April 4, 2000 effective date under 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2).
- Massie asserted that Dr. Wesselius’s May 1999 letter could support an earlier date if considered under § 3.157(b)(1).
- The Board found no evidence that the May 1999 letter addressed a specific VA examination and thus did not apply § 3.157(b)(1); the Court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court should consider a new theory first raised on appeal | Massie argues Robinson requires consideration of the theory is reasonably raised by the record | Secretary urges exhaustion discipline; Massie did not raise below | Court considers the argument but declines to remand; affirm Board decision |
| Whether the May 1999 letter constitutes a report of examination under § 3.157(b)(1) | Massie asserts the letter is an informal claim via § 3.157(b)(1) | VA record does not show a VA examination; letter not a report of examination | Letter does not qualify as a report of examination; Board not required to discuss the theory |
| Scope of Board’s duty to consider theories raised by the record sua sponte | Robinson requires Board to consider reasonably raised theories | No evidence such theory was raised to the Board; no sua sponte review required | Board not liable for sua sponte consideration; Massie’s theory not raised below |
Key Cases Cited
- Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000) (Court may invoke exhaustion discretion; not mandatory without justification)
- Robinson v. Peake, 21 Vet.App. 545 (2008) (Court’s jurisdiction flows from Board decision; liberal pleading; issues vs theories)
- Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board must consider theories reasonably raised by the record; but not if unrebutted record lacks support)
- Cogburn v. Shinseki, 24 Vet.App. 205 (2010) (Attorney representation can affect liberal construing of pleadings; scope of liberality)
- Norris v. West, 12 Vet.App. 413 (1999) (Defines informal claim via report of examination under § 3.157(b)(1))
- Tyrues v. Shinseki, 23 Vet.App. 166 (2009) (Board may bifurcate theories on appeal; finality and remand considerations)
- Hillyard v. Shinseki, 24 Vet.App. 355 (2011) (Discusses definition of 'claim' and 'theory' under 38 C.F.R. § 3.1(p))
- Timex V.I. v. United States, 157 F.3d 879 (Fed. Cir. 1998) (Avoid absurd regulatory results; interpret regulations reasonably)