Dickens v. McDonald

United States Court of Appeals

for the Federal Circuit

______________________

IDA DICKENS,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2015-7022

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 13-1303, Judge Lawrence B.

Hagel.

______________________

Decided: March 1, 2016

______________________

ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick,

Providence, RI, argued for claimant-appellant. Also

represented by NICHOLAS L. PHINNEY, ROBERT VINCENT

CHISHOLM, MATTHEW J. ILACQUA; BARBARA J. COOK,

Cincinnati, OH; CHRISTOPHER J. CLAY, Disabled American

Veterans, Cold Spring, KY.

MARTIN F. HOCKEY, JR., Commercial Litigation

Branch, Civil Division, United States Department of

Justice, Washington, DC, argued for respondent-appellee.

Also represented by BENJAMIN C. MIZER, ROBERT E.

2 DICKENS v. MCDONALD

KIRSCHMAN, JR.; DAVID J. BARRANS, BRIAN D. GRIFFIN,

Office of General Counsel, United States Department of

Veterans Affairs, Washington, DC.

______________________

Before LOURIE, SCHALL, and HUGHES, Circuit Judges.

HUGHES, Circuit Judge.

Calvin Dickens was an Army veteran who passed

away while his benefits claim was pending. Ida Dickens,

his widow, filed a claim for accrued benefits, which the

Board of Veterans’ Appeals rejected for insufficient evi-

dence of combat status. Mrs. Dickens appealed to the

United States Court of Appeals for Veterans Claims,

arguing in part that the Board violated its duty to assist

her with the development of her claim. The Veterans

Court held that it could not consider Mrs. Dickens’s duty-

to-assist argument because she should have raised this

allegation before the Board. Because the principles of

issue exhaustion support the Veterans Court’s determina-

tion, we affirm.

I

In 1998, Mr. Dickens filed a claim for Post-Traumatic

Stress Disorder (PTSD) caused by in-service events.

Mr. Dickens stated that he received a Purple Heart and

Bronze Star in connection with these events. J.A. 19.

Mr. Dickens’s DD-214 may have been able to verify his

statements, but the file was never located despite exten-

sive searching. As such, the existence of the awards—and

thus, evidence of the in-service events—is still uncorrobo-

rated today. Mr. Dickens passed away in April 2006,

while his claim was pending, and Mrs. Dickens filed a

claim for accrued benefits.

In October 2011, Mrs. Dickens testified at a Board

hearing that she and Mr. Dickens had obtained proof of

the Purple Heart, but she did not know what had hap-

DICKENS v. MCDONALD 3

pened to that proof. In March 2012, the Board denied

Mrs. Dickens’s claim, finding that there was no evidence

in the record that Mr. Dickens was involved in combat

during his military service. In September 2012, the

parties entered into a joint motion for partial remand at

the Veterans Court, agreeing that the Board erred in not

providing an adequate discussion as to Mr. Dickens’s

combat status. On remand, in March 2013, the Board

denied the claim, finding again that there was insufficient

evidence to establish that Mr. Dickens engaged in combat.

Mrs. Dickens appealed, arguing in part that the VA

violated its duty to assist her with the development of her

claim because the Board hearing officer failed to suggest

that she seek a copy of Mr. Dickens’s service records in

October 2011. J.A. 4. The Veterans Court rejected this

argument, noting that if Mrs. Dickens believed that the

hearing officer committed an error, she should have

included that issue in the 2012 joint motion for partial

remand. Id. Because Mrs. Dickens did not raise this

argument to the Board, the Veterans Court found that the

Board did not err in this regard. Id. For this and other

reasons, the Veterans Court affirmed the denial of Mrs.

Dickens’s claim. Id. at 6.

Mrs. Dickens appeals. We have jurisdiction pursuant

to 38 U.S.C. §§ 7292(a), (c).

II

We may set aside a Veterans Court decision only

when it is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law.” 38 U.S.C.

§ 7292(d)(1)(A).

“While the Veterans Court may hear legal arguments

raised for the first time with regard to a claim that is

properly before the court, it is not compelled to do so in

every instance.” Maggitt v. West, 202 F.3d 1370, 1377

(Fed. Cir. 2000) (emphasis added). Because the decision

4 DICKENS v. MCDONALD

to invoke the doctrine of issue exhaustion is a discretion-

ary one, its application is largely a matter of application

of law to fact, a question over which we lack jurisdiction.

Cook v. Principi, 353 F.3d 937, 939 (Fed. Cir. 2003) (“This

court is limited by its jurisdictional statute and, absent a

constitutional issue, may not review challenges to factual

determinations or challenges to the application of a law or

regulation to facts.”). But to the extent that the issue

raised involves solely a legal interpretation, we possess

jurisdiction.

In Scott v. McDonald, we outlined the three scenarios

in which the invocation of issue exhaustion is appropriate:

(1) the veteran, on an appeal from the Regional Office

(RO) to the Board, fails to identify errors made by the RO

either by stating that all issues in the statements of the

case are being appealed or by specifically identifying the

issues being appealed; (2) the veteran raises an argument

for the first time on appeal to the Veterans Court and the

Veterans Court determines that the VA’s institutional

interests outweigh the interests of the veteran under the

balancing test set forth in Maggitt; and (3) the veteran

raises an argument for the first time on appeal to this

court and we do not consider it, because we lack jurisdic-

tion to hear arguments that have not been addressed by

or presented to the Veterans Court. 789 F.3d 1375, 1378–

80 (Fed. Cir. 2015). We affirmed the Veterans Court’s

invocation of issue exhaustion under the second scenario.

Id. at 1381.

Here, the Veterans Court decided not to consider Mrs.

Dickens’s duty-to-assist argument because she failed to

raise the issue to the Board. J.A. 4. Under the principles

of issue exhaustion, the Veterans Court’s decision was not

arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with the law. The circumstances in this

case fully support the Veterans Court’s decision. Mrs.

Dickens raised her argument to the Veterans Court for

the first time on appeal in 2014. The argument centered

DICKENS v. MCDONALD 5

on a 2011 purported breach of the duty-to-assist. Mrs.

Dickens had the opportunity to raise the argument in at

least the 2012 joint motion for partial remand and again

on remand to the Board, but did not do so. And, the

record indicates that the Dickenses were on notice of the

need to locate the DD-214 since 1998. See, e.g., id. at 2,

21, 84–88.

We have considered Mrs. Dickens’s remaining argu-

ments, and find them unpersuasive. Because the Veter-

ans Court’s decision not to consider Mrs. Dickens’s duty-

to-assist argument was not arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with the law,

we affirm.

AFFIRMED

No costs.