Veteranclaims’s Blog

March 2, 2016

Dickens v. McDonald, No. 2015-7022(Decided: March 1, 2016); Principles of Issue Exhaustion; Duty to Assist;

Filed under: Uncategorized — veteranclaims @ 1:11 am

 

Excerpt from decision below:

“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 determination, we affirm.”

======================

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 evidence 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 determination, 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 extensive
searching. As such, the existence of the awards—and
thus, evidence of the in-service events—is still uncorroborated
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 hapDICKENS
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 discretionary
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 jurisdiction
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 arguments,
and find them unpersuasive. Because the Veterans
Court’s decision not to consider Mrs. Dickens’s dutyto-
assist argument was not arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with the law,
we affirm.
AFFIRMED
No costs.

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